WRB 8-K
Berkley W R Corp (WRB)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01 | Other Events |
On March 28, 2025, W. R. Berkley Corporation (the “Company”) issued a press release confirming that WR Berkley & Others LLC (“Family Holdings”) has entered into a framework agreement (the “Framework Agreement”) with Mitsui Sumitomo Insurance Company, Limited (“MSI”) and agreed to enter into an amended and restated limited liability company agreement (the “LLC Agreement”) with MSI substantially in the form attached to the Framework Agreement. Family Holdings is an affiliate of William R. Berkley, the Company’s Executive Chairman, and W. Robert Berkley, the Company’s President and Chief Executive Officer. In connection with the transactions contemplated by the Framework Agreement, the Company entered into a letter agreement (the “Cooperation Agreement”) and confidentiality agreement (the “Confidentiality Agreement”) with MSI.
The Framework Agreement (including the form of LLC Agreement) is attached as Exhibit 10.1, the Cooperation Agreement is attached as Exhibit 10.2, and the Confidentiality Agreement is attached as Exhibit 10.3, and each are incorporated by reference. The Company’s press release dated March 28, 2025 is attached as Exhibit 99.1 and incorporated by reference. The foregoing description is qualified in its entirety by reference to such Exhibits.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| * | Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC; |
| ** | Exhibit has been separately filed as Exhibit 10.3 and omitted pursuant to Rule 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish a supplemental copy of the omitted exhibit upon request by the SEC. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| W. R. BERKLEY CORPORATION | ||
| By: | /s/ Richard M. Baio | |
| Name: | Richard M. Baio | |
| Title: | Executive Vice President – Chief Financial Officer | |
Date: March 28, 2025
Exhibit 10.1
Execution Version
FRAMEWORK AGREEMENT
This FRAMEWORK AGREEMENT (this “Agreement”), dated as of March 28, 2025 (the “Effective Date”), is entered into by and between WR Berkley & Others LLC, a Delaware limited liability company (“Family Holdings”), and Mitsui Sumitomo Insurance Company, Limited, a Japanese stock company (“MSI”) (each a “party”, and together the “parties”).
RECITALS
WHEREAS, as of March 20, 2025, W. R. Berkley Corporation, a Delaware corporation (“Berkley”), has issued and outstanding 396,972,168 shares of common stock par value $0.20 per share (“Shares”) that are entitled to vote on the election of directors;
WHEREAS, as of the Effective Date, 67,069,033 of the Shares that are entitled to vote on the election of directors and that are owned by Family Holdings (the “Family Holdings Shares”) will be subject to the provisions of this Agreement and the Symphony Partners LLCA (as defined below);
WHEREAS, the parties intend to form a strategic relationship, to include the acquisition by MSI of fifteen percent (15%) of the issued and outstanding Shares entitled to vote on the election of directors (the “Ownership Threshold”) and the formation of Symphony Partners (as defined below), an entity that will serve as a platform for ongoing cooperation between the parties (collectively, the “Transactions”);
WHEREAS, as of the Effective Date, Berkley and MSI have entered into a Cooperation Agreement (the “Cooperation Agreement”) pursuant to which Berkley and MSI agree to cooperate as to specified matters, including the sharing of information as necessary to prepare the regulatory filings pursuant to Section 1.05 hereof, accounting matters and confidentiality.
WHEREAS, MSI has formed (or will form) Symphony Partners, LLC, a Delaware limited liability company (“Symphony Partners”) and as of the Closing Date the parties will enter into the Amended and Restated Limited Liability Company Agreement of Symphony Partners (the “Symphony Partners LLCA” and, together with this Agreement, the “Transaction Documents”), substantially in the form attached as Exhibit A, pursuant to which Symphony Partners is to be operated following the Closing Date;
WHEREAS, the parties acknowledge that it is their mutual intention to facilitate the acquisition of Shares by MSI up to the Ownership Threshold as promptly as practicable following the Effective Date, subject to applicable Law and without unduly disrupting the public market for Shares, so as to allow for the accounting by MSI for its participation in the Transactions on the equity accounting method under applicable J-GAAP and IFRS; and
WHEREAS, the parties intend for the Transactions, subject to applicable Law, to serve as the platform for ongoing cooperation between MSI and Family Holdings.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by each of the parties, and upon the terms and subject to the conditions set forth in this Agreement, the parties agree as follows:
ARTICLE I
Purchase of MSI Shares
Section 1.01 Purchase of MSI Shares.
(a) Following the Effective Date, MSI shall purchase Shares from time to time, subject to applicable Law, until such time as its ownership of Shares has reached the Ownership Threshold. Such Shares, when acquired by MSI, are referred to as the “MSI Shares”.
(b) MSI shall deliver to Family Holdings notice of the anticipated Closing Date at least twenty (20) Business Days (or any shorter period as the parties may mutually agree) prior to such anticipated date. The parties shall deliver to each other a certification of the number of Family Holdings Shares and MSI Shares, respectively, anticipated to be owned as of the Closing Date.
(c) On the Closing Date, the parties shall execute and deliver the Symphony Partners LLCA, in substantially the form attached as Exhibit A, subject to any changes as the parties may mutually agree and of which written notice has been provided to Berkley at least one Business Day prior to the Closing Date; provided, that any changes to the form attached as Exhibit A that would require the consent of Berkley if they were an amendment or modification to the Symphony Partners LLCA shall also require Berkley’s prior written consent. The parties shall provide Berkley with the executed Symphony Partners LLCA on the Closing Date. Pursuant to the Symphony Partners LLCA, Family Holdings will be issued limited liability company interests in proportion to the number of Family Holdings Shares then owned by Family Holdings and MSI will be issued limited liability company interests in proportion to the number of MSI Shares then owned by MSI, in each case over the aggregate number of Family Holdings Shares and MSI Shares combined then owned by Family Holdings and MSI.
(d) MSI’s obligation to purchase Shares as provided in this Section 1.01 shall terminate when MSI has acquired ownership of Shares in the full amount of the Ownership Threshold, unless MSI determines, in consultation with Family Holdings, to terminate such obligations on an earlier date.
Section 1.02 Equity Method Accounting.
(a) The intent of the Transactions contemplated by the Transaction Documents is to ensure that MSI’s participation in the Transactions may be accounted for on the equity method under J-GAAP and IFRS, as applicable. Family Holdings and MSI acknowledge that, in order to account for the investments on the equity method under J-GAAP and IFRS, (i) MSI must acquire and maintain an equity ownership interest in Berkley; (ii) MSI must appoint at least one designee to the board of Symphony Partners; (iii) one MSI designee must serve as a director on the Berkley Board; (iv) Berkley must not be directly accounted for under the equity method by MSI; and (v) Family Holdings and MSI must be parties to the Symphony Partners LLCA on terms substantially similar to those set forth in Exhibit A (clauses (i), (ii), (iii), (iv) and (v), collectively, the “Equity
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Method Accounting Requirements”). Family Holdings and MSI agree to use their respective reasonable best efforts to satisfy, as soon as possible after the Effective Date and for the duration of the existence of Symphony Partners, the Equity Method Accounting Requirements, as such requirements may change over time; provided that, such reasonable best efforts shall not require Family Holdings (or, for the avoidance of doubt, Berkley) to purchase or sell any Shares and; provided, further, that no other Person (including Family Holdings and Berkley) shall, for the avoidance of doubt, have any liability to MSI due to the failure of any of the Equity Method Accounting Requirements to be achieved, and provided, further, that the parties’ obligations with respect to the Equity Method Accounting Requirement in (x) clause (iii) shall arise only after the Director Appointment Date and (y) clause (v) shall arise only after the Closing Date. Notwithstanding the foregoing, this Agreement shall not in any way impair or restrict the fiduciary duties and obligations that a Person owes to Berkley and its stockholders.
(b) Subject to any requirements of applicable Law, the parties agree that:
(i) Commencing promptly following the Effective Date, MSI and Family Holdings will coordinate any introductions that Family Holdings may make to owners of Shares potentially interested in selling blocks of Shares and MSI shall seek to enter into a mutually agreeable purchase agreement with any such person to purchase such person’s Shares at a mutually agreeable price and time.
(ii) Commencing promptly following the Effective Date, subject to applicable Law and Securities and Exchange Commission (“SEC”) rules and regulations, MSI intends to implement a share purchase plan complying with Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, pursuant to which MSI will acquire the MSI Shares in the open market (the “10b5-1 Plan”). The 10b5-1 Plan shall provide for the purchase of Shares in an amount not to exceed in the aggregate (together with any other Shares acquired by MSI) the Ownership Threshold, subject to receipt of the Required Regulatory Approvals and in all cases in an orderly fashion that seeks to minimize the impact of such purchases on the prevailing price of Shares in the open market. MSI may enter into one or more overlapping 10b5-1 Plans, subject to applicable Law and SEC rules and regulations.
(iii) The 10b5-1 Plan may be terminated prior to obtaining the Ownership Threshold due to the need to obtain the Required Regulatory Approvals or otherwise, in which case MSI will recommence the acquisition of Shares up to the Ownership Threshold as promptly as practicable following receipt of all Required Regulatory Approvals, including by (x) initiating a new 10b5-1 Plan or (y) implementing such other methods as the parties mutually agree based on the level of MSI ownership at such time.
(iv) If for any reason (other than any disposition of Shares by MSI) at any time after the Closing Date the MSI Shares represent less than the Ownership Threshold, Family Holdings will cooperate with MSI’s efforts to purchase additional Shares, at MSI’s sole cost and expense, up to the Ownership Threshold, provided, that under no circumstances will Family Holdings be required to sell any Shares owned by Family Holdings to MSI.
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(c) In furtherance of the intention set forth in Section 1.02(a), Family Holdings will recommend to the Berkley Board that an acceptable MSI designee be appointed to the Berkley Board (a “MSI Berkley Director”), as of the Director Appointment Date, and will otherwise take all reasonable steps to cooperate with MSI in furtherance of the objective of meeting the Equity Method Accounting Requirements, to the extent consistent with the requirements of Section 1.02(a). MSI acknowledges and agrees that the MSI Berkley Director designee shall be bound by the confidentiality (and all other) policies generally applicable to all members of the Berkley Board. For the avoidance of doubt, the parties acknowledge that the MSI Berkley Director designee will be subject to review and approval by the Nominating and Corporate Governance Committee of the Berkley Board pursuant to its customary policies and procedures.
Section 1.03 Strategic Discussions. Between the Effective Date and the Closing Date, and subject to applicable Law, representatives of each of MSI and Family Holdings shall meet periodically to review and discuss their perspectives on material developments in or affecting Berkley and MSI. It is the intention of the parties that any such review and discussion shall occur between the parties in their capacities as shareholders of Berkley, and shall not derogate from, or otherwise serve as a forum for discussions that are inconsistent with, the corporate governance processes of Berkley.
Section 1.04 Voting Agreement. Between the date on which MSI’s ownership of Shares surpasses the Beneficial Owner Threshold and the Closing Date, at any annual or special meeting of the Berkley shareholders, MSI shall vote the MSI Shares in accordance with the recommendation of Family Holdings; provided, that in no event will MSI be required to vote its Shares in favor of a transaction that would reasonably be expected to result in a business combination that would give rise to a significant, direct and irresolvable conflict of interest for MSI and its long-term strategy and; provided, further, that in such limited circumstances, (i) MSI shall promptly submit a notice of termination under Section 4.13 upon the announcement of such a transaction and (ii) to the extent that not all of the MSI Shares have been sold prior to the record date for the shareholder vote on the relevant transaction, MSI shall deliver a proxy directing Family Holdings to vote such remaining MSI Shares in proportion to the votes cast by the shareholders of Berkley actually casting votes on the transaction (other than MSI but including Family Holdings).
Section 1.05 Regulatory Matters. Each of Family Holdings and MSI shall use their respective reasonable best efforts, and shall cooperate fully with each other to make any filing or application with or to any Governmental Entity for any license, permit, consent, approval, authorization, qualification or order of any such Governmental Entity necessary, proper or advisable to consummate the Transactions contemplated by the Transaction Documents and the Cooperation Agreement as promptly as practicable after the Effective Date and to obtain as promptly as practicable approvals by such regulators of all such licenses, permits, consents, approvals, authorizations, qualifications or orders, including the Required Regulatory Approvals.
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ARTICLE II
Covenants
Section 2.01 Standstill. Except with the prior written consent of Family Holdings, from the Effective Date until the date that is the later of (1) two hundred seventy (270) days after any dissolution of Symphony Partners in accordance with the terms of the Symphony Partners LLCA and (2) the date that MSI decreases its ownership below four percent (4%) of outstanding Shares, MSI shall not, and shall cause its controlled Affiliates not to, (a) acquire (or agree, offer, seek or propose to acquire, in each case, publicly or privately), directly or indirectly, by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, ownership of, or own, including beneficial ownership, which, for purposes of this Agreement, shall have the meaning set forth in Section 13(d) of the Securities Exchange Act of 1934, as amended, or through derivative transactions, (i) any Shares in excess of the Ownership Threshold; provided, that if such Ownership Threshold is exceeded as a result of repurchases of outstanding Shares by Berkley, MSI may continue to own such Shares directly or indirectly as long as such direct or indirect Share ownership does not exceed seventeen and a half percent (17.5%) of the outstanding Shares (which, for the avoidance of doubt, shall not include any Shares held by the grantor trust established pursuant to that certain Grantor Trust Agreement, effective as of March 17, 2017, by and between Berkley and Wells Fargo Bank, National Association, as it may be amended or amended and restated from time to time), or (ii) any convertible debt or other equity securities of Berkley or its subsidiaries; (b) publicly or privately offer to, enter into, or publicly or privately propose, any merger, business combination, recapitalization, restructuring or other extraordinary transaction with Berkley or its subsidiaries; (c) directly or indirectly, seek to influence or control the management, board of directors or policies of Berkley or its subsidiaries, except through the participation of the MSI Berkley Director as a member of the Berkley Board in accordance with his or her fiduciary duties owed to Berkley and its stockholders; (d) directly or indirectly, seek to call a special meeting of Berkley shareholders or make any proposal to the Berkley Board or solicit shareholders or seek to nominate or elect directors to the Berkley Board other than with respect to the designation of the MSI Berkley Director; (e) directly or indirectly, make any public or private proposal to the Berkley Board seeking to acquire any business or assets of Berkley; or (f) enter into any discussions, negotiations, agreements, arrangements or understandings with any other Person with respect to any matter described in the foregoing clauses (a) through (e) or form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) to vote, acquire or dispose of any securities of Berkley or its subsidiaries (other than a group with Family Holdings as provided in the Symphony Partners LLCA or this Agreement); provided, that notwithstanding anything to the contrary herein, MSI and Family Holdings may mutually agree to increase their respective ownership of Shares (with the consent of Berkley), in which case this Section 2.01 shall be amended as may be agreed by the parties; provided, further, that (x) the foregoing clause (a) of this provision shall not apply to any Shares acquired indirectly through passive ownership of interests in broad-based index funds, (y) this Section 2.01 shall not apply to MSI’s direct or indirect investment or participation in Lifson Re Ltd. or its subsidiaries and (z) any sale of Shares required as a result of the proviso to clause (a)(i) above shall be carried out pursuant to the terms of Section 8.3 of the Symphony Partners LLCA.
Section 2.02 Non-Solicit. From the Effective Date until the second anniversary of any dissolution of Symphony Partners in accordance with the terms of the Symphony Partners LLCA, without the prior written consent of Family Holdings, MSI shall not hire or solicit for hire any then-current employees of Berkley or its subsidiaries or Persons who have been employees of Berkley or its subsidiaries within the prior six (6) months; provided, that nothing in this Section 2.02 shall prohibit MSI from engaging in general solicitations not directed at such Persons (and hiring any such Persons responding to general solicitations); provided, further, that the hiring of any Person who is (or was within the prior six (6) months) a vice president or more senior title (or with an equivalent title), a department head or a functional leader of Berkley, its subsidiaries or their operating units shall be prohibited without the prior written consent of Family Holdings.
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Section 2.03 Restrictions on Transfer. Commencing on the Effective Date until the earlier of (i) the Closing Date and (ii) such time as there may be a dissolution of Symphony Partners in accordance with the terms of the Symphony Partners LLCA, each of MSI and Family Holdings agrees not to Transfer any Shares, directly or indirectly, except, in each case, (w) in accordance with all applicable provisions of this Agreement, (x) in compliance with applicable Laws, including insurance and securities Laws, (y) in compliance with Berkley’s insider trading policies, to the extent applicable and (z) solely as follows:
(a) by Family Holdings, to the Permitted Family Holdings Transferees; and
(b) by MSI, to the Permitted MSI Transferees;
provided, that if any such Transfer occurs prior to the Closing Date, MSI and Family Holdings will cause any such Permitted Transferee (i) to comply with Section 1.04, Section 2.01, Section 2.02, Section 2.03, Section 2.04 and Section 2.05 of this Agreement as though such Permitted Transferee were a party hereto and enter into a joinder to this Agreement agreeing to be bound as a party hereunder with respect to such sections and (ii) to become an additional member of Symphony Partners on the Closing Date; provided, further, that notwithstanding the foregoing, Family Holdings may Transfer up to 3,553,486 Shares to a Permitted Family Holdings Transferee without causing such Permitted Family Holdings Transferee to become an additional member of Symphony Partners on the Closing Date, so long as, after giving effect to such Transfer, the Family Holdings Shares comprise at least sixteen percent (16%) of the issued and outstanding Shares that are entitled to vote on the election of directors.
Section 2.04 Publicity. Commencing on the Effective Date until such time as there may be a dissolution of Symphony Partners in accordance with the terms of the Symphony Partners LLCA, each of MSI and Family Holdings will coordinate in good faith with each other on any and all press releases and other public statements with respect to the Transactions. Unless otherwise required by Law or the rules of any stock exchange (including any stock exchange on which any Affiliate of a party is listed), neither Family Holdings nor MSI may (or may permit any of their Affiliates to) issue any press release or otherwise make any public announcement or comment on the Transactions without the prior consent of the other.
Section 2.05 Confidentiality. Each of MSI and Family Holdings, for itself and on behalf of its representatives (including, for the purpose of this Section 2.05, such party’s Affiliates and its and its Affiliates’ members, partners, officers, directors, employees, attorneys, accountants, consultants and other advisors, including any Person designated by such party as a Director of Symphony Partners and any secondee of such party (together, such party’s “Representatives”)), agrees to keep confidential, use solely for purposes reasonably related to the Transactions, and not disclose to any Person, any information or matter relating to this Agreement, the other party, Symphony Partners, the members of Symphony Partners or Berkley, or their respective affairs; provided, that:
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(a) any party and its Representatives may make such disclosure to the extent such information (i) is or becomes generally available to the public other than as a result of a breach of this Section 2.05 by such party or its Representatives, (ii) is received by, or becomes available to, such party or its Representatives from a third party (provided, that such third party is not known by such party or such Representative to be (after reasonable inquiry) bound by a confidentiality agreement with respect to such information or prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality with respect to such information), (iii) is already available to, or in the possession of, such party or its Representatives prior to disclosure by the disclosing party (provided, that the source of such information was not known by such party or such Representative to be (after reasonable inquiry) bound by a confidentiality agreement with respect to such information or prohibited from disclosing such information to such party or such Representative by a contractual, legal or fiduciary obligation with respect to such information), or (iv) is independently acquired or developed by such party or its Representatives without the use of, reliance on or reference to any confidential information received directly or indirectly from the disclosing party;
(b) nothing herein shall prohibit any party or its Representatives from making such disclosure to the extent necessary to comply with any applicable Law, regulation or rule (including rules of self-regulatory organizations) or any court order, subpoena or other judicial or governmental process; provided, that such party or Representative shall, to the extent legally permitted and reasonably feasible, (i) advise such regulator, Governmental Entity or other Person to whom the information is required to be disclosed of the confidential nature of the information and request that such information be treated as such, (ii) notify the non-disclosing party promptly and afford it an opportunity, to the fullest extent possible and at the non-disclosing party’s sole expense, to seek an appropriate protective order or otherwise seek to contest, limit or protect the confidentiality of such requested or required disclosure and (iii) if the non-disclosing party objects or challenges such disclosure, reasonably cooperate with the non-disclosing party, at the non-disclosing party’s expense, in its efforts to resist such disclosure; provided, further, that, with respect to any disclosure of confidential information made pursuant to this Section 2.05(b), (A) the disclosing party or such Representative shall furnish only that portion of the confidential information that it reasonably determines, in consultation with its counsel (which may be internal counsel), is necessary to comply with any applicable Law, regulation or rule (including rules of self-regulatory organizations) or any court order, subpoena or other judicial or governmental process and (B) notwithstanding anything to the contrary (including clauses (ii) and (iii) above), neither the party nor any of its Representatives shall be required to notify the non-disclosing party of the disclosure of any such information, if such disclosure is made (x) in response to an ordinary course examination of the party’s or such Representative’s business by a regulator, bank examiner or self-regulatory organization not specifically directed at the disclosing party of such information or (y) pursuant to ongoing reporting requirements under the Securities Exchange Act of 1934, as amended, or under other similar applicable Laws or regulatory requirements or the requirements of any exchange;
(c) any party may make such disclosure to its Representatives and such party’s direct or indirect investors and beneficiaries, trustees, potential investors, lenders and potential lenders and their respective advisors and Representatives who require possession or knowledge of such information in connection with the Transactions; provided, that such party (i) first advises the parties listed in this Section 2.05(c) of the confidential nature of such information and the existence of this Section 2.05 and their obligation to maintain the confidentiality of such information and (ii) shall be responsible and liable for any unauthorized use or disclosure of confidential information in breach of this Section 2.05 by any of its representatives; and
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(d) any party may make such disclosure to the extent reasonably necessary to any bona fide prospective purchaser of such party’s Shares in Berkley; provided, that such prospective purchaser shall be required to maintain the confidentiality of such disclosed information on customary terms.
ARTICLE III
Representations and Warranties
Section 3.01 Representations and Warranties. Each of the parties, as applicable, hereby represents and warrants to the other parties, as of the Effective Date and as of the Closing Date, as follows:
(a) Organization and Standing. Such party (if a corporation, limited liability company, partnership or other entity) is duly organized, validly existing and in good standing under the laws of its jurisdiction of domicile. Such party has the full corporate or other power to carry out its obligations under the Transaction Documents.
(b) Authority; Execution and Delivery; Enforceability. Such party has all requisite power to enter into, consummate the transactions contemplated by, and carry out its obligations under, the Transaction Documents. The execution and delivery by such party of this Agreement, and the consummation by such party of the transactions contemplated by, and the performance by such party of its obligations under, the Transaction Documents have been duly authorized by all requisite actions on the part of such party. The Transaction Documents have been duly executed and delivered by such party and constitutes the legal, valid and binding obligation of such party enforceable against it in accordance with its terms.
(c) No Conflicts. The execution, delivery and performance by such party of the transactions contemplated by the Transaction Documents do not (i) violate or conflict with the organizational documents of such party (if a corporation, limited liability company, partnership or other entity) or (ii) violate in any material respect or conflict in any material respect with any Law or order applicable to such party or any of its Affiliates.
(d) No Litigation. There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of such party, threatened against or by such party that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by the Transaction Documents.
(e) Title. Family Holdings is the record and beneficial owner of all of the Family Holdings Shares either directly or through a wholly-owned entity, and has title to the Family Holdings Shares free and clear of all pledges, liens, charges, encumbrances and security interests of any kind, other than restrictions on transfer under applicable Laws and any Liens previously disclosed to MSI. Family Holdings has the power and right to vote or direct the voting of all of the Family Holdings Shares.
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ARTICLE IV
MISCELLANEOUS
Section 4.01 Amendment; Waiver.
(a) This Agreement may not be amended or modified without the written consent of each of the parties.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Any party may waive any provision of this Agreement with respect to itself if such waiver is approved in writing by such party.
Section 4.02 Notices. Any notice provided for in this Agreement must be in writing and must be delivered by hand, by facsimile, by email, by local messenger or by reputable overnight courier. Notices shall be deemed given: (a) when received, if delivered by hand or local messenger; (b) when sent, if sent by email (provided, that the email is promptly confirmed) during the recipient’s normal business hours; (c) on the first Business Day after being sent, if sent by email other than during the recipient’s normal business hours (provided, that the email is confirmed on or before such Business Day); and (d) one (1) Business Day after being delivered to the courier for next day delivery, if sent by courier. All such notices must be addressed to the applicable parties hereto as follows:
| (i) | if to Family Holdings, |
WR Berkley & Others LLC
475 Steamboat Road
Greenwich, CT 06830
| Attention: | Kelly F. O’Donnell |
| E-mail: | [***] |
| Tel: | [***] |
with a copy to (which shall not constitute notice):
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
| Attention: | David A. Katz |
| E-mail: |
| Tel: | +1 (212) 403-1309 |
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| (ii) | if to MSI, |
Mitsui Sumitomo Insurance Company, Limited
9, Kanda-Surugadai 3-Chome, Chiyoda-ku
Tokyo, 101-8011, Japan
Attention: Mr. Hironori Morimoto – Senior Executive Officer
Mr. Kunihisa Kawasaki – General Manager,
International Business Department
E-mail: [***]
[***]
Tel: [***]
with a copy to (which shall not constitute notice):
Debevoise & Plimpton LLP
66 Hudson Boulevard E
New York, NY 10001
Attention: Nicholas F. Potter
E-mail: [email protected]
Tel: +1 (212) 909-6459
| (iii) | if to Berkley, |
W. R. Berkley Corporation
475 Steamboat Road
Greenwich, CT 06830
Attention: General Counsel
E-mail: [***]
[***]
Tel: [***]
with a copy to (which shall not constitute notice):
Sidley Austin LLP
1 S Dearborn Street
Chicago, IL 60603
Attention: Sean M. Keyvan
E-mail: [email protected]
Tel: +1 (312) 853-4660
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and
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Attention: John H. Butler
E-mail: [email protected]
Tel: +1 (212) 839-8513
Section 4.03 Entire Agreement. This Agreement (including all exhibits and schedules hereto) and (following its execution) the Symphony Partners LLCA hereby constitute the entire agreement, and supersede all prior agreements, understandings, representations and warranties, both written and oral, among the parties with respect to the subject matter of this Agreement.
Section 4.04 Governing Law; Submission to Jurisdiction. This Agreement and any dispute arising hereunder, including with respect to the formation or validity hereof, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof. Each party irrevocably submits, for the purposes of any suit, action or other proceeding arising out of, or based upon, this Agreement or the subject matter hereof, to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the U.S. District Court for the District of Delaware or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware.
Section 4.05 Negotiation; Mediation.
(a) Either party may give written notice to the other party of the existence of an unresolved item of concern, dispute, controversy or claim (a “Negotiation Notice”). After a Negotiation Notice is received, the parties shall promptly hold a meeting attended by a senior executive with decision-making authority of each party, and all other persons with expertise and decision-making authority over the subject matter of the item of concern, dispute, controversy or claim, to attempt in good faith to negotiate a resolution of the matter. Such persons shall conduct additional meetings, conduct investigations and take all other actions as reasonably necessary to resolve the matter within thirty (30) days following the Negotiation Notice (the “Negotiation Period”).
(b) As an alternative to (or concurrently with) the Negotiation Period, the parties may choose to submit an unresolved item of concern, dispute, controversy or claim to nonbinding mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. The parties shall jointly appoint a mutually acceptable mediator, but the AAA shall appoint the mediator if the parties are unable to agree upon such appointment within five (5) days after the submission of the matter. The place of mediation shall be New York, New York and shall be conducted in the English language. Each party shall participate in good faith in the mediation for a period of at least thirty (30) days. Each party shall bear equally the costs of the mediation.
Section 4.06 Specific Performance. Each of the parties agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, without the necessity of posting bond or any other undertaking, the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law or in equity. If any action is brought in equity for injunctive relief or to enforce the provisions of this Agreement, no party shall allege, and each party waives any defense or counterclaim, that there is an adequate remedy at law.
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Section 4.07 Waiver of Trial by Jury. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.07.
Section 4.08 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law by a court of competent jurisdiction, (a) such provision shall be fully severable, (b) this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement and (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement; provided that, the parties shall cooperate to amend this Agreement to include a legal, valid and enforceable replacement provision of similar terms and effects.
Section 4.09 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute one instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 4.10 Non-Circumvention. No party shall, directly or indirectly, take, omit to take, or permit any action having a purpose of circumventing or having an effect of circumventing or rendering inapplicable, in whole or in part, the rights or obligations of any party under this Agreement. Nothing in this Section 4.10 shall apply to any actions taken by any Person in his or her capacity as a director or officer of Berkley.
12
Section 4.11 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any Person, other than the parties and such assigns, any legal or equitable rights hereunder, except that Berkley shall be an intended third party beneficiary entitled to enforce such obligations as if a party hereto with respect to the rights of Family Holdings set forth in (a) the first sentence of Section 1.01(c), (b) Section 2.01, (c) Section 2.02, (d) Sections 4.04 through 4.07, Section 4.10, and this Section 4.11, (e) the proviso in the first sentence of Section 4.13, and (f) the last sentence of Section 4.13 insofar as such sentence confers on Berkley the right to purchase MSI Shares in the manner described in Section 8.3 of the Symphony Partners LLCA, and such provisions (and the related definitions) shall not be amended, modified, terminated or waived in any manner that would adversely affect the rights of Berkley without the prior written consent of Berkley.
Section 4.12 Successors and Assigns. This Agreement and the rights and obligations under this Agreement shall not be assignable or transferable by any party (including by operation of law in connection with a merger or consolidation of such party) without the prior written consent of the other party; provided, that MSI may assign its rights and obligations to any Permitted MSI Transferee to which it transfers its Shares or its limited liability company interests in Symphony Partners; provided, however, no such assignment shall limit or relieve MSI of its duties under this Agreement. Any attempted assignment in violation of this Section 4.12 shall be void ab initio. To the maximum extent permitted by Law, and without limitation on any other rights of the parties, this Agreement shall be binding on each party’s successors and assigns.
Section 4.13 Termination of Agreement. This Agreement shall be terminated in its entirety: (a) upon the mutual written agreement of the parties, (b) upon delivery by either party of a written notice of termination, provided, that if a party delivers a notice of termination, this Agreement shall not be terminated for thirty (30) days following delivery of such notice of termination (or such extended period as may be agreed by the parties), during which time the parties shall seek to resolve the issues underlying such notice of termination in accordance with Section 4.05 (to the extent that such issues are resolvable), and (c) following the Closing Date, upon dissolution of Symphony Partners in accordance with the terms of the Symphony Partners LLCA; provided, that Section 1.04, Section 2.01, Section 2.02, Section 2.05, and Sections 4.04 through Section 4.07, Section 4.10, Section 4.11, and the last sentence of this Section 4.13 shall survive such termination until the later of eighteen (18) months after the date of termination and such time as MSI owns less than one percent (1%) of the outstanding Shares, except that Section 2.01 and Section 2.02 shall survive until the conclusion of the period referred to in such sections, if later. In the event of a termination under clause (a) and (b), above, the parties shall effectuate a wind-down of the MSI Share position in the manner described in Section 8.3 of the Symphony Partners LLCA.
ARTICLE V
Definitions
Section 5.01 Definitions. For purposes of this Agreement, the following terms have the respective meanings set forth below:
“10b5-1 Plan” has the meaning set forth in Section 1.02(b)(ii).
“AAA” means the American Arbitration Association.
13
“Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person; provided, that in no event shall Berkley or any of its Subsidiaries be deemed to be Affiliates of Family Holdings or MSI.
“Agreement” has the meaning set forth in the preamble.
“Berkley” has the meaning set forth in the recitals.
“Berkley Board” means the board of directors of the Berkley.
“Beneficial Owner Threshold” means four and nine tenths percent (4.9%) of the issued and outstanding Shares.
“Business Day” means any day other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by Law to close in the City of New York, New York or Tokyo, Japan.
“Closing Date” means the date on which MSI acquires Berkley Shares equal to the Ownership Threshold, or such earlier date as may be designated by MSI to Family Holdings in writing after the Required Regulatory Approvals have been obtained. For the avoidance of doubt, the Closing Date will not occur until after the Regulatory Approval Date.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of securities or partnership or other ownership interests, by contract or otherwise, while “Controlled by”, “Controls”, “Controlling” and “under common Control with” have correlative meanings.
“Cooperation Agreement” has the meaning set forth in the recitals.
“Director Appointment Date” means the earlier to occur of (1) the Closing Date and (2) March 15, 2026 so long as on such date (A) MSI beneficially owns at least 12.5% of the outstanding Shares as of such date and (B) the applicable Required Regulatory Approvals have been obtained; provided, that in the case of clause (2), the appointment of a director to the Berkley Board will, as determined by MSI and its accounting advisors, result in fulfillment of the Equity Method Accounting Requirements.
“Effective Date” has the meaning set forth in the preamble.
“Equity Method Accounting Requirements” has the meaning set forth in Section 1.02(a).
“Family Holdings” has the meaning set forth in the preamble.
“Family Holdings Shares” has the meaning set forth in the recitals.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
14
“Governmental Entity” means any government or any arbitrator, tribunal or court of competent jurisdiction, administrative agency or commission, taxing authority or other governmental, quasi-governmental authority or self-regulatory organization (including FINRA) or instrumentality (in each case whether federal, state, local, foreign, international or multinational).
“IFRS” means international accounting standards issued by the International Financial Reporting Standards Foundation and the International Accounting Standards Board, as in effect from time to time.
“J-GAAP” means Japanese Generally Accepted Accounting Principles.
“Law” means any federal, state, local, foreign, international or multinational treaty, constitution, statute or other law, ordinance, rule or regulation.
“Lien” means any mortgage, lien, security interest, pledge, reservation, equitable interest, charge, easement, lease, sublease, conditional sale or other title retention agreement, right of first refusal, hypothecation, covenant, servitude, right of way, variance, option, warrant, claim, community property interest, restriction (including any restriction on use, voting, transfer, alienation, receipt of income or exercise of any other attribute of ownership) or encumbrance of any kind.
“Member of the Berkley Family” means each of William R. Berkley, Marjorie J. Berkley and each lineal descendant of William R. Berkley.
“MSI” has the meaning set forth in the preamble.
“MSI Shares” has the meaning set forth in Section 1.01(a).
“MSI Berkley Director” has the meaning set forth in Section 1.02(c).
“Negotiation Notice” has the meaning set forth in Section 4.05(a).
“Negotiation Period” has the meaning set forth in Section 4.05(a).
“Ownership Threshold” has the meaning set forth in the recitals.
“party” and “parties” have the meaning set forth in the preamble.
“Permitted Family Holdings Transferees” means (a) any Member of the Berkley Family, (b) any trust of which a Member of the Berkley Family is the primary beneficiary or of which Members of the Berkley Family are the primary beneficiaries (a “Berkley Trust”), (c) the estate of any Member of the Berkley Family (a “Berkley Estate”), (d) any entity a majority of the equity interests in which are owned directly or indirectly by any one or more Members of the Berkley Family, Berkley Trusts and Berkley Estates, and (e) any non-profit organization, charitable foundation or organization, or charitable trust (including charitable lead trusts and charitable remainder trusts the only current beneficiaries of which are one or more Permitted Family Holdings Transferees and charitable or non-profit organizations), in each case for which all the funding of such foundation, trust or organization came primarily from one or more other Permitted Family Holdings Transferee.
15
“Permitted MSI Transferees” means, with respect to MSI, any Affiliate of MSI listed on Schedule 2.03(b); provided, that in no event shall Symphony Partners constitute a “Permitted Transferee” of MSI.
“Permitted Transferees” means, collectively, the Permitted Family Holdings Transferees and the Permitted MSI Transferees.
“Person” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.
“Regulatory Approval Date” means the date on which all of the Required Regulatory Approvals have been obtained or the relevant waiting or deemer period has expired.
“Representatives” has the meaning set forth in Section 2.05.
“Required Regulatory Approvals” means the prior approvals, non-disapprovals and expirations of waiting periods as may be identified by the parties, including in consultation with counsel to Berkley, as necessary in order to consummate the Transactions.
“Shares” has the meaning set forth in the recitals.
“SEC” has the meaning set forth in Section 1.02(b)(ii).
“Symphony Partners” has the meaning set forth in the recitals.
“Symphony Partners LLCA” has the meaning set forth in the recitals.
“Transactions” has the meaning set forth in the recitals.
“Transaction Documents” has the meaning set forth in the recitals.
“Transfer” means any transfer, sale, exchange, assignment, Lien or other disposition (irrespective of whether any of the foregoing is effected with or without consideration, directly or indirectly, voluntarily or involuntarily, by operation of Law or otherwise, or whether inter vivos or upon death), including (a) the grant of an option to acquire either or both of the legal or beneficial ownership of a Share, (b) any sale or other disposition of any legal or equitable interest in a Share (including any voting right attaching to it), (c) any direction (by way of renunciation or otherwise) by a Person entitled to an allotment or issue of that Share that it be allotted or issued to another Person, (d) any grant of any Lien over that Share and (e) any agreement to effect any of the foregoing. “Transferee” and “Transferor” shall have correlative meanings.
16
Section 5.02 Interpretation; Certain Definitions. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender, as the context requires; (b) references to the terms “Article”, “Section”, “Schedule” and “Exhibit” are references to the articles and sections of, and schedules and exhibits to, this Agreement unless otherwise specified; (c) all schedules and exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein; (d) references to “$” shall mean U.S. dollars; (e) the words “include”, “includes”, “including” and words of similar import when used in this Agreement shall be deemed to be followed by the words “without limitation”, unless otherwise specified; (f) references to “written” or “in writing” include the electronic form; (g) “or” shall be construed in the inclusive sense of “and/or”; (h) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (i) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (j) the parties hereto have each participated in the negotiation and drafting of this Agreement, and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement; (k) except to the extent the context otherwise requires, a reference to any Person includes such Person’s successors and permitted assigns; (l) references to a statute, rule or regulation refer to such statute, rule or regulation as amended, modified or supplemented from time to time and include any successor legislation thereto and, in the case of any statute, any rules and regulations promulgated thereunder; (m) references to any agreement or contract are to that agreement or contract as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof; (n) any reference to “days” means calendar days unless Business Days are expressly specified; and (o) when calculating the period of time before which, within which or following which any act is to be done, or any step is to be taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and, if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day.
[Remainder of page intentionally left blank]
17
IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as of the date first written above.
| WR BERKLEY & OTHERS LLC | ||
| By: | /s/ W. Robert Berkley, Jr. | |
| Name: W. Robert Berkley, Jr. | ||
| Title: Manager | ||
| MITSUI SUMITOMO INSURANCE COMPANY, LIMITED | ||
| By: | /s/ Shinichiro Funabiki | |
| Name: Shinichiro Funabiki | ||
| Title: President and Chief Executive Officer | ||
[Signature Page to Framework Agreement]
Exhibit A
Amended and Restated Limited Liability Company Agreement of Symphony Partners, LLC
[Attached]
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
BY AND AMONG
SYMPHONY PARTNERS, LLC,
WR BERKLEY & OTHERS LLC,
AND
MITSUI SUMITOMO INSURANCE COMPANY, LIMITED
DATED AS OF [CLOSING DATE]
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS AND INTERPRETATION |
1 | |||||
| Section 1.1 |
Definitions |
1 | ||||
| Section 1.2 |
Interpretation and Construction |
6 | ||||
| ARTICLE II GENERAL PROVISIONS |
7 | |||||
| Section 2.1 |
Formation of the Company |
7 | ||||
| Section 2.2 |
Name |
7 | ||||
| Section 2.3 |
Purpose; Power |
7 | ||||
| Section 2.4 |
Registered Office and Registered Agent; Principal Office |
8 | ||||
| Section 2.5 |
Fiscal Year |
8 | ||||
| Section 2.6 |
Relationship |
8 | ||||
| Section 2.7 |
Title to Company Assets |
8 | ||||
| Section 2.8 |
Authority |
8 | ||||
| Section 2.9 |
Other Activities; Corporate Opportunities |
9 | ||||
| Section 2.10 |
Liability of Members |
9 | ||||
| Section 2.11 |
Conduct of Business |
10 | ||||
| ARTICLE III MEMBERS; MEMBERSHIP INTERESTS; MEMBER VOTING |
10 | |||||
| Section 3.1 |
Members |
10 | ||||
| Section 3.2 |
Admission and Withdrawal |
10 | ||||
| Section 3.3 |
Membership Interests |
10 | ||||
| Section 3.4 |
Certificates for Membership Interests |
10 | ||||
| Section 3.5 |
Member Exercise of Rights |
10 | ||||
| Section 3.6 |
Member Meetings |
11 | ||||
| Section 3.7 |
Member Voting |
11 | ||||
| ARTICLE IV CAPITAL CONTRIBUTIONS; DISTRIBUTIONS |
12 | |||||
| Section 4.1 |
Capital Contributions |
12 | ||||
| Section 4.2 |
No Withdrawals |
12 | ||||
| Section 4.3 |
Interest |
12 | ||||
| Section 4.4 |
Loans From Members |
12 | ||||
| Section 4.5 |
Distributions |
12 | ||||
| Section 4.6 |
Withholding |
12 | ||||
| ARTICLE V MANAGEMENT OF BUSINESS; BOARD OF DIRECTORS |
13 | |||||
| Section 5.1 |
Management of Business |
13 | ||||
i
Symphony Partners, LLC LLCA
| Section 5.2 |
Board Composition; Director Appointment |
13 | ||||
| Section 5.3 |
Directors; Term |
13 | ||||
| Section 5.4 |
Chairperson |
13 | ||||
| Section 5.5 |
Director Compensation and Expenses |
13 | ||||
| Section 5.6 |
Place of Meetings |
14 | ||||
| Section 5.7 |
Regular Meetings |
14 | ||||
| Section 5.8 |
Special Meetings |
14 | ||||
| Section 5.9 |
Quorum of the Board |
15 | ||||
| Section 5.10 |
Actions of the Board |
15 | ||||
| Section 5.11 |
Action by Written Consent |
15 | ||||
| Section 5.12 |
Voting of the Shares; Tender Offers |
15 | ||||
| Section 5.13 |
Fiduciary Duties |
16 | ||||
| Section 5.14 |
Strategic Discussions |
16 | ||||
| ARTICLE VI TRANSFER RESTRICTIONS |
17 | |||||
| Section 6.1 |
Restrictions on Transfers of Membership Interests |
17 | ||||
| Section 6.2 |
Transfers |
17 | ||||
| Section 6.3 |
Joinder |
17 | ||||
| Section 6.4 |
Effect of Membership Interests in Hands of the Transferee |
18 | ||||
| Section 6.5 |
Transfer in Violation of Agreement |
18 | ||||
| Section 6.6 |
Restrictions on Transfers of Shares |
18 | ||||
| ARTICLE VII BOOKS AND RECORDS; FISCAL MATTERS |
19 | |||||
| Section 7.1 |
Bank Accounts; Investments |
19 | ||||
| Section 7.2 |
Operation of Company |
19 | ||||
| Section 7.3 |
Information Rights |
20 | ||||
| Section 7.4 |
Member Expenses |
20 | ||||
| Section 7.5 |
Company Expenses |
20 | ||||
| Section 7.6 |
Allocation of Company Expenses |
21 | ||||
| ARTICLE VIII TERM; DISSOLUTION; WINDING UP |
21 | |||||
| Section 8.1 |
Term |
21 | ||||
| Section 8.2 |
Events Causing Dissolution |
22 | ||||
| Section 8.3 |
Effect of Dissolution |
22 | ||||
| Section 8.4 |
Distribution of Company Property and Proceeds of Sale Thereof |
24 | ||||
| Section 8.5 |
Filing with Delaware Secretary of State |
24 | ||||
| Section 8.6 |
Final Audit |
24 | ||||
| ARTICLE IX MISCELLANEOUS |
25 | |||||
| Section 9.1 |
Amendment of Agreement; Waiver |
25 | ||||
ii
| Section 9.2 |
Notices |
25 | ||||
| Section 9.3 |
Entire Agreement |
27 | ||||
| Section 9.4 |
Governing Law |
27 | ||||
| Section 9.5 |
Negotiation; Mediation |
27 | ||||
| Section 9.6 |
Specific Performance |
28 | ||||
| Section 9.7 |
Waiver of Trial by Jury |
28 | ||||
| Section 9.8 |
Severability |
28 | ||||
| Section 9.9 |
Counterparts |
28 | ||||
| Section 9.10 |
Non-Circumvention |
29 | ||||
| Section 9.11 |
No Third Party Beneficiaries |
29 | ||||
| Section 9.12 |
Binding Effect |
29 | ||||
| Section 9.13 |
Termination of Agreement |
29 | ||||
| Section 9.14 |
Confidentiality |
30 | ||||
| Section 9.15 |
Successors and Assigns |
31 | ||||
| ARTICLE X EXCULPATION AND INDEMNIFICATION |
31 | |||||
| Section 10.1 |
Exculpation |
31 | ||||
| Section 10.2 |
Indemnification |
32 | ||||
| Section 10.3 |
Expenses |
32 | ||||
| Section 10.4 |
Period of Indemnity |
32 | ||||
| Section 10.5 |
Notice by Indemnitee |
32 | ||||
| Exhibits |
||
| Exhibit A |
Form of Joinder Agreement | |
| Schedules |
||
| Schedule 3.3 |
Membership Schedule | |
| Schedule 5.2 |
Directors as of Closing Date | |
| Schedule 5.7 |
Schedule of Regular Board Meetings | |
| Schedule 6.1(b) |
Permitted MSI Transferees | |
iii
Symphony Partners, LLC LLCA
SYMPHONY PARTNERS, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT (this “Agreement”) of Symphony Partners, LLC, a Delaware limited liability company (the “Company”), dated as of [•], 2026 (the “Closing Date”), is entered into by and among the Company, Mitsui Sumitomo Insurance Company, Limited, a Japanese stock company (“MSI”), and WR Berkley & Others LLC, a Delaware limited liability company (“Family Holdings”), and any other Person(s) subsequently admitted as a Member of the Company in accordance with the terms of this Agreement. The Company and each Member is referred to as a “party” and collectively, the “parties”.
RECITALS
WHEREAS, the Company was duly formed under the Act (as defined below) on [•], 2025;
WHEREAS, on [•], 2025, the Company and MSI, as the initial member, entered into a limited liability company agreement of the Company (the “Original Agreement”); and
WHEREAS, on March 28, 2025, Family Holdings and MSI entered into that certain Framework Agreement (the “Framework Agreement”), pursuant to which Family Holdings and MSI agreed to enter into the Transactions (as defined therein).
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties amend and restate the Original Agreement in its entirety and agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. For purposes of this Agreement, the following terms have the respective meanings set forth below:
“AAA” has the meaning set forth in Section 9.5(b).
“Acceptance Notice” has the meaning set forth in Section 8.3(c).
Symphony Partners, LLC LLCA
“Act” means the Delaware Limited Liability Company Act, Title 6 of the Delaware Code, Section 18-101 et seq., as it may be amended from time to time, and any successor to such Act.
“Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person; provided that, in no event shall Berkley or any of its Subsidiaries be deemed to be Affiliates of Family Holdings or MSI for purposes of this Agreement.
“Agreement” has the meaning set forth in the preamble.
“Berkley” means Berkley, a Delaware corporation.
“Berkley Board” means the board of directors of Berkley.
“Board” means the board of directors of the Company.
“Business Day” means any day other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by Law to close in the City of New York, New York or Tokyo, Japan.
“Capital Contribution” means the total amount of cash, cash equivalents and other property, if any, contributed to the Company by all the Members or any one Member, as the case may be.
“Certificate of Formation” has the meaning set forth in Section 2.1.
“Chairperson” has the meaning set forth in Section 5.4.
“Closing Date” has the meaning set forth in the preamble.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning set forth in the preamble.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of securities or partnership or other ownership interests, by contract or otherwise, while “Controlled by”, “Controls”, “Controlling” and “under common Control with” have correlative meanings.
“Corporate Opportunity” has the meaning set forth in Section 2.9.
“Director” has the meaning set forth in Section 5.2.
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Symphony Partners, LLC LLCA
“Family Holdings” has the meaning set forth in the preamble.
“Family Holdings Berkley Directors” has the meaning set forth in Section 5.12(b).
“Family Holdings Directors” has the meaning set forth in Section 5.2.
“Family Holdings Shares” means the Shares that are owned by Family Holdings and its Permitted Transferees and are subject to the terms of this Agreement, as set forth on Schedule 3.3.
“Fiscal Year” has the meaning set forth in Section 2.5.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Framework Agreement” has the meaning set forth in the recitals.
“GAAP” means United States generally accepted accounting principles.
“Governmental Entity” means any government or any arbitrator, tribunal or court of competent jurisdiction, administrative agency or commission, taxing authority or other governmental, quasi-governmental authority or self-regulatory organization (including FINRA) or instrumentality (in each case whether Federal, state, local, foreign, international or multinational).
“IFRS” means international accounting standards issued by the International Financial Reporting Standards Foundation and the International Accounting Standards Board, as in effect from time to time.
“Joinder Documents” has the meaning set forth in Section 6.3.
“Law” means any Federal, state, local, foreign, international or multinational treaty, constitution, statute or other law, ordinance, rule or regulation.
“Lien” means any mortgage, lien, security interest, pledge, reservation, equitable interest, charge, easement, lease, sublease, conditional sale or other title retention agreement, right of first refusal, hypothecation, covenant, servitude, right of way, variance, option, warrant, claim, community property interest, restriction (including any restriction on use, voting, transfer, alienation, receipt of income or exercise of any other attribute of ownership) or encumbrance of any kind.
“Majority Vote” means, with respect to actions to be taken by Members, the affirmative vote or consent of Members holding at least a majority of the Membership Interests then outstanding and, with respect to actions to be taken by the Board, the affirmative vote or consent of at least a majority of the Directors.
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“Member” means any Person that is admitted as a member of the Company or is issued or Transferred Membership Interests in accordance with the terms of this Agreement and executes Joinder Documents; provided that, such term does not include any Person who has ceased to be a Member of the Company.
“Member of the Berkley Family” means each of William R. Berkley, Marjorie J. Berkley, and each lineal descendant of William R. Berkley.
“Membership Interests” has the meaning set forth in Section 3.3(a).
“Membership Percentage” means, with respect to any Member as of any date, the percentage equal to the number of Shares that are owned by such Member and are subject to this Agreement, as set forth on Schedule 3.3, divided by the total number of Family Holdings Shares and MSI Shares.
“MSI” has the meaning set forth in the preamble.
“MSI Berkley Director” has the meaning set forth in Section 5.12(b).
“MSI Directors” has the meaning set forth in Section 5.2.
“MSI Shares” means the Shares that are owned by MSI and its Permitted Transferees, as set forth on Schedule 3.3.
“Negotiation Notice” has the meaning set forth in Section 9.5(a).
“Negotiation Period” has the meaning set forth in Section 9.5(a).
“Notice of Dissolution” means a written notice by a Member of such Member’s intention to dissolve the Company pursuant to Section 8.2(e).
“Offer Notice” has the meaning set forth in Section 8.3(b).
“Original Agreement” has the meaning set forth in the recitals.
“Permitted Business” means acting as a forum for (a) determining voting of the Shares by the Members, (b) discussing Person(s) to be designated by MSI pursuant to Section 5.12(b), (c) discussing business and other opportunities for Berkley in the Members’ capacity as shareholders of Berkley, it being the intention of the Members that any such discussion shall occur between the Members in their capacities as shareholders of Berkley, and shall not derogate from, or otherwise serve as a forum for discussions that are inconsistent with, the corporate governance processes of Berkley.
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“Permitted Family Holdings Transferees” means (a) any Member of the Berkley Family, (b) any trust of which a Member of the Berkley Family is the primary beneficiary or of which Members of the Berkley Family are the primary beneficiaries (a “Berkley Trust”), (c) the estate of any Member of the Berkley Family (a “Berkley Estate”), (d) any entity a majority of the equity interests in which are owned directly or indirectly by any one or more Members of the Berkley Family, Berkley Trusts and Berkley Estates, and (e) any non-profit organization, charitable foundation or organization, or charitable trust (including charitable lead trusts and charitable remainder trusts the only current beneficiaries of which are one or more Permitted Family Holdings Transferees and charitable or non-profit organizations), in each case for which all the funding of such foundation, trust or organization came primarily from one or more other Permitted Family Holdings Transferee.
“Permitted MSI Transferees” means, with respect to MSI, any Affiliate of MSI listed on Schedule 6.1(b); provided that, in no event shall the Company constitute a “Permitted Transferee” of MSI.
“Permitted Transfer” has the meaning set forth in Section 6.4(b).
“Permitted Transferees” means, collectively, the Permitted Family Holdings Transferees and the Permitted MSI Transferees.
“Person” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.
“Personally Identifiable Information” means Personally Identifiable Information as such term is defined by U.S. state breach notification Laws.
“Proposed Sale” has the meaning set forth in Section 8.3(b).
“Representatives” has the meaning set forth in Section 9.14.
“Reserved Matters” means each of the following:
(a) amendments to the organizational documents of the Company;
(b) material changes to the accounting or tax policies of the Company;
(c) authorizing the Company or the Company’s subsidiaries to undertake any business other than Permitted Business; and
(d) incurrence of debt by the Company.
“Shares” means the shares of common stock, par value $0.20, of Berkley.
“Subsidiary” means, with respect to any Person, any corporation or other Person, a majority of the outstanding voting securities or other equity or similar ownership interests of which is at that time owned or Controlled, directly or indirectly, by such first Person or one or more of the other Subsidiaries of such first Person or a combination thereof. For clarity, in no event shall Berkley or any of its Subsidiaries be deemed to be Subsidiaries of the Company for purposes of this Agreement.
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“Tax” means any Federal, state, local or foreign income, alternative, minimum, accumulated earnings, personal holding company, franchise, capital stock, profits, windfall profits, gross receipts, sales, use, value-added, transfer, registration, stamp, premium, excise, customs duties, severance, base erosion (including under Section 59A of the Code), real property, personal property, ad valorem, occupancy, license, occupation, employment, payroll, social security, disability, unemployment, workers’ compensation, withholding, estimated or other similar tax, duty, fee, assessment or other governmental charge or deficiencies thereof (including all interest and penalties thereon and additions thereto).
“Tax Return” means any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Entity in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any applicable Law relating to any Tax.
“Transfer” means any transfer, sale, exchange, assignment, Lien or other disposition (irrespective of whether any of the foregoing is effected with or without consideration, directly or indirectly, voluntarily or involuntarily, by operation of Law or otherwise, or whether inter vivos or upon death), including (a) the grant of an option to acquire either or both of the legal or beneficial ownership of a Membership Interest or, as applicable, a Share, (b) any sale or other disposition of any legal or equitable interest in a Membership Interest or, as applicable, a Share (including in each case any voting right attaching to it), (c) any direction (by way of renunciation or otherwise) by a Person entitled to an allotment or issue of that Membership Interest or, as applicable, Share that it be allotted or issued to another Person, (d) any grant of any Lien over that Membership Interest or, as applicable Share and (e) any agreement to effect any of the foregoing. “Transferee” and “Transferor” shall have correlative meanings.
Section 1.2 Interpretation and Construction. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender, as the context requires; (b) references to the terms “Article”, “Section”, “Schedule” and “Exhibit” are references to the articles and sections of, and schedules and exhibits to, this Agreement unless otherwise specified; (c) all schedules and exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein; (d) references to “$” shall mean U.S. dollars; (e) the words “include”, “includes”, “including” and words of similar import when used in this Agreement shall be deemed to be followed by the words “without limitation”, unless
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otherwise specified; (f) references to “written” or “in writing” include the electronic form; (g) “or” shall be construed in the inclusive sense of “and/or”; (h) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (i) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (j) the parties hereto have each participated in the negotiation and drafting of this Agreement, and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement; (k) except to the extent the context otherwise requires, a reference to any Person includes such Person’s successors and permitted assigns; (l) references to a statute, rule or regulation refer to such statute, rule or regulation as amended, modified or supplemented from time to time and include any successor legislation thereto and, in the case of any statute, any rules and regulations promulgated thereunder; (m) references to any agreement or contract are to that agreement or contract as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof; (n) any reference to “days” means calendar days unless Business Days are expressly specified; and (o) when calculating the period of time before which, within which or following which any act is to be done, or any step is to be taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and, if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 Formation of the Company. The Company has been organized as a Delaware limited liability company under and pursuant to the Act by the filing of a Certificate of Formation with the Office of the Secretary of State of Delaware as required by the Act (as may be amended from time to time, the “Certificate of Formation”) and shall be continued in accordance with this Agreement.
Section 2.2 Name. The name of the Company is “Symphony Partners, LLC” until such time, if any, that the Board selects another name; provided that, such name shall contain the words “Limited Liability Company” or the letters “LLC” or the abbreviation “L.L.C.” or the equivalent translation thereof. In the case of a change of name of the Company pursuant to this Section 2.2, specific references herein to the name of the Company shall be deemed to have been amended to the name as so changed.
Section 2.3 Purpose; Power. The Company has been formed for the object and purpose, and the nature of the business to be conducted and promoted by the Company is, the Permitted Business and any and all activities necessary, desirable or incidental to the Permitted Business. Subject to any limitations set forth in this Agreement, the Company shall have the power and authority to take any and all actions that limited liability companies may take under the Act that are necessary, appropriate, incidental or convenient to or for the furtherance of the foregoing purpose.
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Section 2.4 Registered Office and Registered Agent; Principal Office.
(a) The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the initial registered office named in the Certificate of Formation or such other office (which need not be a place of business of the Company) as the Board designates from time to time in the manner provided by the Act.
(b) The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate of Formation or such other Person or Persons as the Board designates from time to time in the manner provided by the Act.
(c) The principal office of the Company shall be at [•] or at such place as the Board designates from time to time, which need not be in the State of Delaware, and the Company shall maintain records there for inspection as required by the Act.
Section 2.5 Fiscal Year. The fiscal year (“Fiscal Year”) of the Company shall be the calendar year or, in the case of the last Fiscal Year of the Company, the fraction of the calendar year ending on the date on which the winding-up of the Company is completed.
Section 2.6 Relationship. The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member, for any purposes, and this Agreement may not be construed to suggest otherwise. Nothing contained in this Agreement nor any act of the parties hereto shall be deemed or construed by the parties hereto or any other Person as creating a relationship of principal and agent, partnership, joint venture or similar relationship between or among the parties hereto.
Section 2.7 Title to Company Assets. Title to the Company’s assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Company as an entity. Title to any or all of the Company’s assets shall be held in the name of the Company, and no Member, Director or officer of the Company shall have any ownership interest in such Company assets. All Company assets shall be recorded as the property of the Company in its books and records.
Section 2.8 Authority. Neither the Members, nor any Director, by reason of the Member’s or Director’s status as such, shall have any authority to act for or bind the Company, unless such Member or Director has been authorized to act as an agent of the Company.
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Section 2.9 Other Activities; Corporate Opportunities. Each Member shall be entitled to and may have business interests and engage in activities in addition to those relating to the Company. No Member or Director, solely in their respective capacities as such, shall have any duty to communicate or present an investment or business opportunity or prospective economic advantage to the Company or any Member thereof in which such Person may, but for the provisions of this Agreement, have an interest or expectancy (“Corporate Opportunity”) and no Member or Director will be deemed to have breached any fiduciary or other duty or obligation to the Company by reason of the fact that any such Person pursues or acquires a Corporate Opportunity for itself or its affiliates or directs, sells, assigns or transfers such Corporate Opportunity to another Person or does not communicate information regarding such Corporate Opportunity to the Company. Nothing in this Agreement shall (x) in any way impair or restrict any duty or obligation that any Person has to Berkley or (y), subject to the foregoing clause (x), be deemed to impair, restrict or prohibit MSI or Family Holdings from conducting its business within or outside the United States, including any such businesses that may compete with each other.
Section 2.10 Liability of Members.
(a) Except as otherwise provided under the Act, the debts, liabilities, contracts and other obligations of the Company (whether arising in contract, tort or otherwise) shall be solely the debts, liabilities, contracts and other obligations of the Company, and no Member in its capacity as such shall be liable personally for any debts, liabilities, contracts or other obligations of: (a) the Company, except to the extent and under the circumstances set forth in any non-waivable provision of the Act or in any separate written instrument signed by the applicable Member or (b) any other Member. No Member shall have any responsibility to contribute to or in respect of the liabilities or obligations of the Company or to return distributions made by the Company, except as expressly provided in this Agreement or required by any non-waivable provision of the Act. The agreement set forth in the immediately preceding sentence shall be deemed to be a compromise with the consent of all of the Members for purposes of §18-502(b) of the Act. However, if any court of competent jurisdiction holds or determines in a final, non-appealable order that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such contribution or make any such return, such obligation shall be the obligation of such Member and not of any other Person.
(b) This Agreement is not intended to, and does not, create or impose any fiduciary duty on the Members with respect to the other Members or the Company. Furthermore, each of the Members and the Company waives any and all fiduciary duties relating to the Company that, absent such waiver, may be implied between a Member and any other Member or the Company, by applicable Law including the Act, and in doing so, acknowledges and agrees that the duties of each Member to each other Member and the Company (in their capacity as Members of the Company) exist only to the extent of the contractual rights and obligations of the Members expressly set forth in this Agreement.
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Nothing in this Section 2.10(b) shall in any way impair or restrict any duty or obligation that any Person has to Berkley.
Section 2.11 Conduct of Business. Except as otherwise contemplated by this Agreement, the Company shall preserve intact its current business organization and corporate existence and maintain all material licenses, permits, consents, approvals, registrations and other authorizations from any Governmental Entity which are required or necessary for the conduct of its business as conducted from time to time.
ARTICLE III
MEMBERS; MEMBERSHIP INTERESTS; MEMBER VOTING
Section 3.1 Members. As of the Closing Date, Family Holdings and MSI are Members of the Company. The names and addresses of the Members are set forth on Schedule 3.3.
Section 3.2 Admission and Withdrawal. No new Members (other than any Transferee admitted as a substitute Member pursuant to Section 6.2 and satisfying the requirements of Section 6.4) may be admitted to, and no Member may withdraw from, the Company, without the unanimous written consent of the Members. The Company shall update Schedule 3.3 to reflect such admissions and withdrawals.
Section 3.3 Membership Interests.
(a) The Company shall have one class of limited liability company interests (the “Membership Interests”), which shall have equal rights and preferences. The rights, privileges, interests, duties and obligations of the holders of the Membership Interests with respect to certain matters related to the Company, including distributions and matters with respect to which Members are entitled to vote, consent or approve, shall be as set forth in this Agreement.
(b) The Company has issued Membership Interests to Family Holdings and MSI equal to their Membership Percentages as set forth on Schedule 3.3. The respective Membership Interests and corresponding Membership Percentages shall be deemed automatically adjusted to reflect any changes in such Member’s ownership of Shares, and the Company shall update Schedule 3.3 to reflect such adjustments.
Section 3.4 Certificates for Membership Interests. At the discretion of the Board, Membership Interests may be represented by a certificate. The exact contents of a certificate shall be determined by the Board.
Section 3.5 Member Exercise of Rights. Each Member agrees to exercise such Member’s rights pursuant to this Agreement and under Law to give effect to this Agreement (including this Article III), including to elect or replace any Directors to serve as Directors on the Board in accordance with Section 5.3, and to cause the Company to, and the Company agrees that it will, conduct its proceedings in accordance with this Agreement (including this Article III).
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Section 3.6 Member Meetings.
(a) The Members shall meet from time to time as determined by the Members for the transaction of such business as may properly come before the Members. Meetings of the Members may be held either in person or virtually, and shall be held at such place, on such date and at such time as the Members shall determine. In the absence of specific designation, the meetings shall be held at the principal office of the Company. The Members may participate in meetings of the Members by means of telephone conference or similar communications equipment that allows all persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in person at the meeting. If all participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal office of the Company.
(b) The presence of representatives of each of MSI and Family Holdings is required to constitute a quorum at any meeting of the Members.
(c) The Board shall have full power and authority concerning the manner of conducting any meeting of the Members, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of this Article III, the conduct of voting, the validity and effectiveness of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting, in each case consistent with (and solely to the extent in accordance with) the terms of this Agreement. The Board shall designate a Person to serve as chairperson of any meeting and shall further designate a Person to take minutes of any meeting. The chairperson of the meeting shall have the power to adjourn the meeting from time to time, without notice, other than announcement of the time and place of the adjourned meeting. Upon resuming such adjourned meeting, any business may be transacted that might have been transacted at the meeting as originally called.
(d) All meetings of the Members and any resolutions adopted at such meetings will be recorded in minutes of proceedings, which shall be prepared by the Company promptly after adjournment of each such meeting. The Company shall deliver copies of such minutes and all relevant materials to the Member requesting such materials.
Section 3.7 Member Voting.
(a) All Members shall be entitled to vote on any matter submitted to a vote of the Members. Each Member shall be entitled to vote based on its Membership Percentage.
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(b) With respect to any matter other than a matter for which the affirmative vote of Members owning a specified percentage of outstanding Membership Interests is required by the Act, the Certificate of Formation or this Agreement, the affirmative vote of Members by Majority Vote at a meeting at which a quorum is present shall be the act of the Members; provided that, the Reserved Matters shall require the affirmative vote of each of MSI and Family Holdings.
(c) Any action that may be taken at a meeting of the Members may be taken without a meeting if a consent in writing, setting forth the action to be taken, shall be signed by all Members.
ARTICLE IV
CAPITAL CONTRIBUTIONS; DISTRIBUTIONS
Section 4.1 Capital Contributions. No Member shall be obligated to make any Capital Contribution. Any Capital Contribution shall be made in accordance with this Agreement.
Section 4.2 No Withdrawals. No Member shall have the right to withdraw its Capital Contribution or to demand and receive property of the Company or any distribution in return for such Member’s Capital Contribution, other than as expressly provided in this Agreement or required by the Act.
Section 4.3 Interest. No interest shall be paid by the Company on Capital Contributions.
Section 4.4 Loans From Members. No Member shall be obligated or permitted to make any loan to the Company.
Section 4.5 Distributions. Any distributions shall be made by the Company to the Members pro rata in accordance with their respective Membership Percentages; provided that, in all cases the Company shall not be obligated to declare or pay any distribution in respect of the Membership Interests except as may be approved by the Board.
Section 4.6 Withholding. Notwithstanding anything to the contrary contained herein, the Company shall be entitled to deduct and withhold from any distribution pursuant to this Agreement such amounts as are required to be deducted or withheld under the Code or any provision of state, local or foreign tax law or under any other applicable legal requirement. Notwithstanding anything to the contrary contained herein, all amounts withheld by the Company pursuant to this Section 4.6 shall be treated as if such amounts were distributed to such Person to whom such amounts would otherwise have been distributed.
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ARTICLE V
MANAGEMENT OF BUSINESS; BOARD OF DIRECTORS
Section 5.1 Management of Business. Except as otherwise expressly provided in this Agreement, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Board. The Board shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company, to make decisions affecting the business and affairs of the Company, and to take actions as it deems necessary or appropriate to accomplish the purposes of the Company and to exercise all of the power and authority that limited liability companies may take under the Act, provided, however, that there shall be reserved to the Members the powers that, under the Act, are reserved to the unitholders of a limited liability company organized under the laws of the State of Delaware.
Section 5.2 Board Composition; Director Appointment. The Board shall be composed of four (4) directors (each member of the Board, a “Director”), of which two (2) shall be appointed by MSI (the “MSI Directors”) and two (2) shall be appointed by Family Holdings (the “Family Holdings Directors”); provided that, in each case, MSI Directors shall be reasonably acceptable to Family Holdings, and the Family Holdings Directors shall be reasonably acceptable to MSI. For the avoidance of doubt, any Member’s respective right to designate Directors set forth in this Section 5.2 includes the right to remove and replace any Directors previously appointed by such Member. The Directors of the Company as of the Closing Date are set forth on Schedule 5.2.
Section 5.3 Directors; Term. Each Director shall hold office until his or her death or until his or her successor shall have been duly elected and qualified. If a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause, including pursuant to Section 5.2) of any Director designated by a Member pursuant to Section 5.2, such Member, as applicable, shall cause the vacancy resulting thereby to be filled in compliance with this Section 5.2.
Section 5.4 Chairperson. Family Holdings shall appoint from among the Family Holdings Directors a chairperson to preside at meetings of the Directors (the “Chairperson”).
Section 5.5 Director Compensation and Expenses. Directors shall not be entitled to receive any salary or compensation from the Company for the discharge of his or her duties under this Agreement. Reasonable out-of-pocket expenses incurred by a Director in connection with attendance at meetings of the Board shall be reimbursed by the Member appointing such Director.
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Section 5.6 Place of Meetings. The Company and the Members shall cause the Board to meet quarterly. Meetings of the Board may be held either in person or virtually, at whatever place is specified in the notice of the meeting; provided that, unless otherwise determined by the Board, each calendar year, two (2) meetings of the Board shall be held in the United States and two (2) meetings of the Board shall be held in Tokyo, Japan. The Directors may participate in meetings of the Board or any committee thereof by means of telephone conference or similar communications equipment that allows all persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in person at the meeting. If all participants are participating by telephone conference or similar communications equipment, the meeting shall be deemed to be held at the principal office of the Company.
Section 5.7 Regular Meetings. Attached as Schedule 5.7 is a tentative schedule of regular Board meetings through the calendar year following the Closing Date. On or prior to December 31 of each calendar year after such year, the Company shall establish a tentative schedule of regular Board meetings for the following calendar year, including the time and place of such meetings; provided that, the Company shall in good faith schedule the regular Board meetings to precede regularly scheduled Berkley Board meetings. The Company and the Members shall cause regular Board meetings to adhere to such schedule except in the case of extenuating circumstances, in which case the Company shall give the Directors notice of any change in time or place of a regular Board meeting not less than fifteen (15) days prior to the rescheduled meeting date. MSI and Family Holdings, acting in consultation with the Directors, shall set the agenda for each regular Board meeting, and the Company shall provide a statement in reasonable detail of such agenda for each regular Board meeting reasonably in advance of each such meeting, and in any case at least ten (10) Business Days prior to the scheduled meeting date to the extent reasonably practicable. The Company shall use commercially reasonable efforts to provide written materials pertaining to matters to be discussed at a Board meeting, if any, at least five (5) Business Days before such meeting; provided that, additional or supplementary materials may be provided later than such time where reasonably required for the Board to receive complete and timely information to conduct the applicable meeting. It is the intention of the Members that the matters relating to Berkley to be discussed at Board meetings be discussed by the Directors as representatives of the Members in their capacity as shareholders of Berkley and shall not derogate from, or otherwise serve as a forum for discussions that are inconsistent with, the corporate governance processes of Berkley.
Section 5.8 Special Meetings. Special meetings of the Directors may be held at any time upon the request of the MSI Directors or the Family Holdings Directors. The Company shall send five (5) days’ notice of any special meeting to the last known address and e-mail address of each Director. Notification of the time and place of such meeting may be waived in writing before or after such meeting. Attendance of a Director at such meeting shall also constitute a waiver of notification thereof, except where such Director attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. The Company shall include in any such notice of a special meeting of the Directors a statement in reasonable detail of the proposed agenda for such meeting.
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Section 5.9 Quorum of the Board. Except as may be otherwise provided by Law or in this Agreement, at any Board meeting, the presence of Directors who constitute at least a majority of all Directors then in office shall constitute a quorum; provided that, such quorum shall include at least one (1) MSI Director and at least one (1) Family Holdings Director; provided, further, that if two (2) consecutive Board meetings are postponed for a lack of quorum due to absence at both meetings of at least one (1) MSI Director or one (1) Family Holdings Director, then the attendance by such MSI Director or Family Holdings Director, as the case may be, shall not be required to constitute a quorum hereunder for purposes of the rescheduled Board meeting subsequent to the second (2nd) postponed meeting (provided that, (A) the Directors present at each such meeting that is postponed determine to reschedule such meeting for a date and time that is no sooner than five (5) Business Days following the postponement and (B) the Company provides three (3) Business Days’ notice of each such rescheduled meeting to each Director).
Section 5.10 Actions of the Board. Except as otherwise specified in this Agreement or as may be required by applicable Law, any and all actions and decisions at Board meetings at which a quorum is present and voting shall require the affirmative vote of at least a Majority Vote of the Board; provided that, any vote on a Reserved Matter shall require the prior written consent of each of MSI and Family Holdings. If a vote of the Board results in a tie, the Chairperson will cast the tie-breaking vote, except with respect to the Reserved Matters.
Section 5.11 Action by Written Consent. Any action that may be taken at a Board meeting may be taken without a meeting if a consent in writing, setting forth the action to be taken, shall be signed by all Directors.
Section 5.12 Voting of the Shares; Tender Offers.
(a) Voting of the Members’ Shares. Except as set forth in Section 5.12(b) and Section 5.12(c), at any annual or special meeting of the Berkley shareholders, each of Family Holdings and MSI shall vote the Family Holdings Shares and the MSI Shares, respectively, as determined by the Board.
(b) Berkley Directors. At any annual or special meeting of the Berkley shareholders at which Berkley Board directors are to be elected, the Members shall take all necessary actions to cause the Family Holdings Shares and the MSI Shares to be voted in favor of one (1) person designated by MSI to the Berkley Board (a “MSI Berkley Director”) and at least two (2) persons designated by Family Holdings to the Berkley Board (the “Family Holdings Berkley Directors”). MSI acknowledges and agrees that the MSI Berkley Director designee shall be bound by the confidentiality (and all other) policies generally applicable to all Berkley Board members. For the avoidance of doubt, the Members acknowledge that the MSI Berkley Director designee will be subject to review and approval by the Nominating and Corporate Governance Committee of the Berkley Board pursuant to its customary policies and procedures.
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(c) Extraordinary Transaction. Notwithstanding Section 5.12(a), in no event will MSI be required to vote the MSI Shares in favor of a transaction that would reasonably be expected to result in a business combination that would give rise to a significant, direct and irresolvable conflict of interest for MSI and its long-term strategy; provided that, in such limited circumstances, (i) promptly following the announcement of such a transaction, MSI shall deliver a Notice of Dissolution to Family Holdings describing such conflict of interest, and (ii) to the extent that not all MSI Shares have been sold pursuant to Section 8.3 prior to the record date for the shareholder vote on the relevant transaction, MSI shall deliver a proxy directing Family Holdings to vote such remaining MSI Shares in proportion to the votes cast by the shareholders of Berkley actually casting votes on the transaction (other than MSI but including Family Holdings).
(d) Tender Offers. If a tender offer is made for Shares by a third party offeror (other than Berkley), no Member may tender Shares to such offeror. Notwithstanding the foregoing, if the Berkley Board recommends that the Berkley shareholders tender their Shares to the offeror, then each of MSI and Family Holdings are permitted to tender their respective Shares to the offeror.
Section 5.13 Fiduciary Duties. The Board and each of its Directors shall, to the fullest extent permitted by Law, and notwithstanding any duty otherwise existing at law or in equity, have the same fiduciary duties to the Company that the Board and each of its Directors would have had if the Company had been organized as a corporation under the Act. Notwithstanding anything to the contrary in this Section 5.13 or any duty that any Directors may owe to the Company under applicable Law, the duty of loyalty owed to the Company by any Directors selected or appointed by a Member pursuant to Section 5.2 hereof shall be waived in the event and to the extent that such duty conflicts with any fiduciary or other duty existing at law or in equity that is owed by such Directors to the Member that selected or appointed such Directors or to Berkley, or to any such Member’s Permitted Transferees; provided that, any employee or officer of such Member or such Member’s Permitted Transferees that is selected or appointed by such Member as a Director shall be deemed to have the same fiduciary duties to such Member as a Member’s board or equivalent governing body would have to such Member. Nothing in this Agreement shall in any way impair or restrict the fiduciary duties and obligations that a Person owes to Berkley and its stockholders.
Section 5.14 Strategic Discussions. From and after the Closing Date, and subject to applicable Law, each of MSI and Family Holdings shall designate representatives to meet periodically to review and discuss their perspectives on material developments in or affecting Berkley and MSI. It is the intention of the Members that any such review and discussion shall occur between such representatives in their capacities as representatives of shareholders of Berkley, and shall not derogate from, or otherwise serve as a forum for discussions that are inconsistent with, the corporate governance processes of Berkley.
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ARTICLE VI
TRANSFER RESTRICTIONS
Section 6.1 Restrictions on Transfers of Membership Interests. Members may not Transfer any Membership Interests, directly or indirectly, except, in each case, (w) in connection with its simultaneous transfer of its corresponding Shares, (x) in accordance with all applicable provisions of this Agreement, (y) in compliance with applicable Laws, including insurance and securities laws and (z) solely as follows:
(a) by Family Holdings, to the Permitted Family Holdings Transferees to which Family Holdings simultaneously transfers Shares pursuant to Section 6.6 other than as provided in Section 6.6;
(b) by MSI, to the Permitted MSI Transferees to which MSI simultaneously transfers Shares pursuant to Section 6.6; and
(c) with the prior written consent of the non-Transferring Member to any Transferee that is not a Permitted Transferee to which the Transferring Member simultaneously transfers Shares pursuant to Section 6.6.
Section 6.2 Transfers. No Member may Transfer any Membership Interests to any Person unless: (a) prior to such Transfer, the Transferee of any such Membership Interests shall have agreed in writing to be bound by all of the provisions of this Agreement by executing a joinder agreement in accordance with Section 6.3, and any Membership Interests Transferred shall be subject thereafter to the rights and obligations of the Company and the Members under this Agreement; (b) such Transfer is in accordance with this Agreement; and (c) the secretary of the Company receives copies of all Joinder Documents and the relevant “know-your-customer” documents reasonably requested by the Company.
Section 6.3 Joinder. Prior to a Transfer, the transferring Member shall cause the Person to whom Membership Interests owned by such Member are to be Transferred to execute and deliver, as a condition to such Transfer, a joinder agreement substantially in the form attached hereto as Exhibit A and all other documents deemed reasonably necessary by the Company to evidence such party’s joinder in, acceptance of, and agreement with, the obligations with respect to the Membership Interests contained in this Agreement (the “Joinder Documents”). The Company shall not register a Person (who at the time of registration is not a Member) as a holder of Membership Interests unless such Person has executed and delivered the Joinder Documents.
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Section 6.4 Effect of Membership Interests in Hands of the Transferee.
(a) Membership Interests that are Transferred pursuant to this Article VI shall thereafter continue to be subject to all obligations and restrictions relating to such Membership Interests contained in this Agreement (including restrictions on Transfer) and entitled to all rights relating to such Membership Interests that are contained in this Agreement; provided that, (i) MSI may Transfer to Permitted MSI Transferees rights specific to MSI under this Agreement and (ii) Family Holdings may Transfer to Permitted Family Holdings Transferees rights specific to Family Holdings under this Agreement.
(b) Each party hereby agrees that, if any Membership Interests are Transferred to a Permitted Transferee and subsequently such Transferee ceases to be a Permitted Transferee of the applicable Member, then, unless the applicable Member would have been permitted to Transfer such Membership Interests to such Transferee either at the actual date of such Transfer or on the date when such Transferee ceases to be a Permitted Transferee (a “Permitted Transfer”), all such Membership Interests shall, upon such cessation, be automatically Transferred back to the applicable Member without any further action on the part of any Person; provided that, for the avoidance of doubt, in the event of a Permitted Transfer, upon such cessation, such Permitted Transferee shall, for all purposes, cease to be treated as a Permitted Transferee of such Member.
Section 6.5 Transfer in Violation of Agreement. Any Transfer or attempted Transfer of Membership Interests in violation of this Article VI shall not be valid or have any force or effect and shall, to the extent permitted by applicable Law, be null and void ab initio. Furthermore, if any Member is admitted after the date of this Agreement in reliance on an inaccurate representation, the Company shall use its commercially reasonable efforts to enforce any rights the Company may have against such Member, which may include determining that such Member is in default under this Agreement and shall not have any rights under this Agreement.
Section 6.6 Restrictions on Transfers of Shares. Members may not Transfer any Shares, directly or indirectly, except, in each case, (w) in accordance with all applicable provisions of this Agreement, (x) in compliance with applicable Laws, including insurance and securities Laws, (y) in compliance with Berkley’s insider trading policies, to the extent applicable, and (z) solely as follows:
(a) by Family Holdings, to the Permitted Family Holdings Transferees to which Family Holdings simultaneously transfers Membership Interests pursuant to Section 6.1 except as provided below;
(b) by MSI, to the Permitted MSI Transferees to which MSI simultaneously transfers Membership Interests pursuant to Section 6.1; and
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(c) with the prior written consent of the non-Transferring Member to any Transferee that is not a Permitted Transferee to which the Transferring Member simultaneously transfers Membership Interests pursuant to Section 6.1; provided that, no Member shall Transfer Shares pursuant to this clause (c) that would result in any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act) having beneficial ownership of four percent (4%) or more of the outstanding capital stock of Berkley after giving effect to such Transfer without the prior written consent of Berkley, such consent not to be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing, Family Holdings may Transfer up to [3,553,486] Shares to a Permitted Family Holdings Transferee without Transferring its corresponding Membership Interests to such Permitted Family Holdings Transferee, so long as, after giving effect to such Transfer, Family Holdings continues to hold at least sixteen percent (16%) of the issued and outstanding Shares.
ARTICLE VII
BOOKS AND RECORDS; FISCAL MATTERS
Section 7.1 Bank Accounts; Investments. The Company shall deposit Capital Contributions, revenues and any other Company funds in a bank account established in the name of the Company, or shall invest such funds, at the direction of the Board, in furtherance of the purposes of the Company. No other funds shall be deposited into Company bank accounts or commingled with Company investments. Funds deposited in the Company’s bank accounts may be withdrawn only to be invested in furtherance of the Company’s purposes, to pay Company debts or obligations or to be distributed to the Members pursuant to this Agreement.
Section 7.2 Operation of Company.
(a) Books and Records. The Company shall keep or cause to be kept at the Company’s principal office specified pursuant to Section 2.4 complete and accurate books and records of account of the Company, including all records required to be kept pursuant to the Act, including a current list of the names, addresses and Membership Interests held by each Member (including the dates on which each of the Members became a Member), copies of federal, state and local information or income tax returns for each of the Company’s tax years, copies of this Agreement and the Certificate of Formation, including all amendments or restatements, and correct and complete books and records of account of the Company. The books of the Company shall be kept on the basis of GAAP and IFRS, which basis shall be the basis for the preparation of the financial reports to be sent to the Members. Each Member shall have the right, during normal business hours and upon reasonable advance notice, to, personally or through their professional advisers or other representatives, audit, examine and make copies of or extracts from the books of account of the Company, including the right to request for inquiries, set hearings and interview sessions and conduct on-sight audits.
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(b) Financial Records. The Company shall preserve and maintain proper and up-to-date accounting and financial records in relation to its business and affairs in accordance with GAAP, IFRS and applicable Laws.
(c) Taxes. The Company shall (i) prepare and timely file, or cause to be prepared and timely filed, all Tax Returns that the Company is required to file and (ii) timely remit, or cause to be timely remitted, all Taxes due in respect of such Tax Returns.
Section 7.3 Information Rights.
(a) The Company shall provide each Member, with reasonable promptness, such information and data with respect to the Company as may be necessary for such Member or its Affiliates to comply with its or their respective reporting, regulatory or other legal requirements and as may from time to time be reasonably requested by any such Member.
(b) The Company reserves the right to withhold any information from and to exclude from any Board or committee meeting or any portion thereof any Director, to the extent (A) the Company reasonably believes upon the advice of counsel that access to such information or attendance at such meeting is reasonably expected to adversely affect the attorney-client privilege between the Company and its counsel or would result in a conflict of interest or (B) such information relates to any dispute between the Company and the Member that appointed such Director as long as such dispute remains unresolved.
(c) Notwithstanding anything to the contrary herein, the Company shall have no obligation to, and shall not, provide any Member or any Director appointed by any Member with, or with any access to, any Personally Identifiable Information, provided that, the Company may provide any Member or any such Director with, or with access to, Personally Identifiable Information to the extent that the Company determines that provision of, or access to, such Personally Identifiable Information is reasonably necessary in order for such Member or Director to perform its duties to the Company.
Section 7.4 Member Expenses. Except as set forth in this Agreement, each Member shall bear (and to the extent possible, reimburse the other Members or fund the Company, as applicable) its own fees and expenses in connection with the formation and operation of the Company.
Section 7.5 Company Expenses. The Company shall bear and be charged with all costs and expenses of the Company (the “Company Expenses”) (and shall promptly reimburse the Members, to the extent that any of such costs and expenses are paid by such entities), including the following costs and expenses of the Company:
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(a) all fees, costs and expenses of tax advisors, legal counsel, accountants, administrators, auditors, depositaries or custodians, paying agents, broker-dealers and other service providers of the Company or the Board;
(b) all fees, costs and expenses incurred in connection with conducting the Permitted Business, including any legal, tax, administrative, accounting, advisory, sourcing and consulting and other similar costs (including related compensation) and expenses in connection therewith;
(c) expenses associated with the preparation of the Company’s periodic reports and related statements (e.g., financial statements, tax returns and tax forms) and other printing, publishing and reporting-related expenses (including other notices and communications) in respect of the Company and its activities (including internal expenses, charges and related costs incurred, charged or specifically attributed or allocated by the Company in connection with such provision of services thereby); and
(d) any other fees, costs, expenses, charges, liabilities or other obligations (without duplication) incurred by or on behalf of the Company in connection with its activities hereunder.
Section 7.6 Allocation of Company Expenses. Company Expenses shall be allocated among the Members pro rata based on their respective Membership Percentages, and Members may pay such Company Expenses directly or make a Capital Contribution to the Company for their pro rata share. Notwithstanding the foregoing, the Board may allocate Company Expenses among the Members on any other basis if the Board determines in good faith that such other basis is more equitable or otherwise appropriate under the circumstances (including for legal, tax, regulatory or other similar considerations).
ARTICLE VIII
TERM; DISSOLUTION; WINDING UP
Section 8.1 Term. The term of the Company commenced upon the acceptance of the Certificate of Formation by the Delaware Secretary of State and shall, subject to the applicable provisions of the Act, have a perpetual life until the Company is dissolved in accordance with this Article VIII.
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Section 8.2 Events Causing Dissolution. The Company shall dissolve, and its affairs shall be wound up, at such time as:
(a) an event causing the dissolution of a limited liability company has occurred under the Act, other than pursuant to Section 18-801(a)(3) thereof;
(b) there are no members of the Company unless the business of the Company is continued in accordance with the Act;
(c) an entry of a decree of judicial dissolution having occurred under §18-802 of the Act;
(d) the unanimous written consent of all Members at any time to dissolve and wind up the affairs of the Company; and
(e) delivery of a Notice of Dissolution;
provided, however, that the Company shall not be dissolved or required to be wound up upon an event causing dissolution of a limited liability company described in clause (b) of this Section 8.2 if within ninety (90) days after the occurrence of such event of dissolution, all remaining members agree in writing to continue the business of the Company; provided, further, if MSI or Family Holdings delivers a Notice of Dissolution, the Company shall not be dissolved or required to be wound up under clause (e) of this Section 8.2 for thirty (30) days following delivery of such Notice of Dissolution (or such extended period or, in the case of a Notice of Dissolution delivered pursuant to Section 5.12(c), shorter period, as may be agreed by the Members), during which time the Members shall seek to resolve the issues underlying such Notice of Dissolution in accordance with Section 9.5 (to the extent that such issues are resolvable), and, if no such resolution is reached, the Company shall be dissolved and wound up. In addition, during any period when a Notice of Dissolution is pending, the MSI Berkley Director shall recuse himself or herself from attending and voting at meetings of the Berkley Board.
Section 8.3 Effect of Dissolution; Wind-Down of MSI Share Position.
(a) Upon dissolution of the Company, MSI and Family Holdings shall develop a plan for the mutually agreeable wind-down of MSI’s Share ownership position and MSI shall sell the MSI Shares in an orderly fashion in accordance with such plan (or failing agreement on any such plan, then in a reasonable manner intended to minimize any adverse market price impact of such sales), applicable Law and Berkley’s insider trading policy, to the extent applicable; provided that, in accordance with the procedures set forth in Section 8.3(b)-(f), MSI shall first offer to sell the MSI Shares to Family Holdings, and if Family Holdings declines to purchase all or a portion of such MSI Shares, then MSI shall offer the remaining MSI Shares to Berkley at a price no higher than, and on other terms at least as favorable (to Berkley) as, those offered to Family Holdings, and if Berkley declines to purchase all or a portion of such MSI Shares, then MSI shall be free to sell the remaining Shares either in open market transactions on the New York Stock Exchange or to one or more third parties in block sales on terms, in the case of block sales, no more favorable to
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the purchaser (in all material respects) as those offered to Berkley, subject to fluctuations in market value of the Shares; provided, further that, neither MSI nor Family Holdings shall transfer Shares pursuant to this clause (a) that would result in any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act) having beneficial ownership of four percent (4%) or more of the outstanding capital stock of Berkley after giving effect to such Transfer without the prior written consent of Berkley; provided, further that, the prior proviso shall not restrict any Transfer pursuant to (i) any widely disseminated underwritten offering that is registered under the Securities Act of 1933, as amended, and where no direction is given by MSI or Family Holdings to the underwriters with respect to any ultimate purchasers or (ii) any sale effected pursuant to and in accordance with Rule 144 under the Securities Act of 1933, as amended; provided that, for purposes of this clause (ii), if in the ninety (90) days immediately prior to the applicable sale MSI beneficially owned 10% or more of the outstanding capital stock of Berkley, MSI shall satisfy the condition referred to in paragraph (e) of Rule 144 with respect to such sale as if MSI were an affiliate of Berkley under such rule. In addition, during such wind-down period (x) MSI shall cause any remaining MSI Berkley Director to promptly resign from the Berkley Board; (y) if requested by Family Holdings, MSI will cooperate with Family Holdings to effect a sale of one or more blocks of the MSI Shares to one or more institutional buyers that may be identified by Family Holdings, on pricing and other terms reasonably acceptable to MSI and such buyers; and (z) MSI shall from time to time vote any remaining MSI Shares in accordance with Sections 5.12(a) and 5.12(c) as if the same were still in effect at such time.
(b) Before any sale, transfer, or other disposition of any MSI Shares, MSI shall provide written notice (the “Offer Notice”) to Berkley and Family Holdings as set forth in Section 8.3(a) specifying the material terms and conditions of the proposed sale, transfer, or disposition (the “Proposed Sale”). The Offer Notice shall include the number of MSI Shares to be sold, the proposed sale price (which may be subject to market value fluctuations), and any other material terms and conditions of the Proposed Sale.
(c) Upon receipt of the Offer Notice, Family Holdings as set forth in Section 8.3(a) shall have the right, but not the obligation, to purchase all or a portion of the MSI Shares on the terms and conditions set forth in the Offer Notice. Family Holdings must exercise this right by delivering a written notice of acceptance (the “Acceptance Notice”) to MSI within twenty (20) Business Days following receipt of the Offer Notice.
(d) If Family Holdings delivers an Acceptance Notice within the specified period, MSI and Family Holdings shall proceed to consummate the sale of the MSI Shares on the terms and conditions set forth in the Offer Notice. The closing of such sale shall take place within ten (10) Business Days following the delivery of the Acceptance Notice, or such other date as the parties may mutually agree.
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(e) If Family Holdings does not deliver an Acceptance Notice within the specified period, or if Family Holdings declines to purchase the MSI Shares, MSI shall deliver an Offer Notice to Berkley. Upon receipt of the Offer Notice, Berkley shall have the right, but not the obligation, to purchase all or a portion of the MSI Shares on the terms and conditions set forth in the Offer Notice. Berkley must exercise this right by delivering an Acceptance Notice to MSI within ten (10) Business Days following receipt of the Offer Notice. If Berkley delivers an Acceptance Notice within the specified period, MSI and Berkley shall proceed to consummate the sale of the MSI Shares on the terms and conditions set forth in the Offer Notice. The closing of such sale shall take place within ten (10) Business Days following the delivery of the Acceptance Notice, or such other date as the parties may mutually agree.
(f) If neither Family Holdings nor Berkley delivers an Acceptance Notice within the specified period, or if Family Holdings and Berkley decline to purchase all of the MSI Shares, MSI shall be free to proceed with the Proposed Sale; provided that, if MSI desires to make any sales at a price lower than that specified in the Offer Notice it will again comply with the procedures set forth in paragraphs (b) – (e) above.
Section 8.4 Distribution of Company Property and Proceeds of Sale Thereof.
(a) Upon completion of all desired sales of Company property (to the extent the Company has any such property), and after payment of all selling costs and expenses, the Board shall distribute the proceeds of such sales, and any Company property that is to be distributed in kind, to each Member pro rata in accordance with their respective Membership Percentages.
(b) All distributions required under this Section 8.4 shall be made to the Members by the end of the taxable year in which the liquidation occurs or, if later, within ninety (90) days after the date of such liquidation.
Section 8.5 Filing with Delaware Secretary of State. When the Board has complied with the distribution plan in Section 8.4, the Board, on behalf of the Members, shall execute, acknowledge and cause to be filed the relevant filing with the Delaware Secretary of State in accordance with the Act and the Company shall dissolve and be cancelled.
Section 8.6 Final Audit. Within a reasonable time following the completion of the liquidation, the Company shall supply to each of the Members a statement that shall set forth the assets and the liabilities of the Company as of the date of complete liquidation and each Member’s pro rata distributions in accordance with their respective Membership Percentages.
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ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendment of Agreement; Waiver.
(a) This Agreement may not be amended or modified without the written consent of the Members.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Any party may waive any provision of this Agreement with respect to itself if such waiver is approved in writing by such party.
Section 9.2 Notices. Any notice provided for in this Agreement must be in writing and must be delivered by hand, by facsimile, by email, by local messenger or by reputable overnight courier. Notices shall be deemed given: (a) when received, if delivered by hand or local messenger; (b) when sent, if sent by email (provided that, the email is promptly confirmed) during the recipient’s normal business hours; (c) on the first Business Day after being sent, if sent by email other than during the recipient’s normal business hours (provided that, the email is confirmed on or before such Business Day); and (d) one (1) Business Day after being delivered to the courier for next day delivery, if sent by courier. All such notices must be addressed to the applicable parties hereto as follows:
| (i) | If to Berkley: |
W. R. Berkley Corporation
475 Steamboat Road
Greenwich, CT 06830
| Attention: | General Counsel |
| E-mail: | [***] |
| [***] |
| Tel: | [***] |
with a copy to (which shall not constitute notice):
Sidley Austin LLP
1 S Dearborn Street
Chicago, IL 60603
| Attention: | Sean M. Keyvan |
| E-mail: |
| Tel: | +1 (312) 853-4660 |
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and
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
| Attention: | John H. Butler |
| E-mail: |
| Tel: | +1 (212) 839-8513 |
| (ii) | If to the Company: |
Symphony Partners, LLC
Attention: [. ]
E-mail: [. ]
Tel: [. ]
| (ii) | If to MSI: |
Mitsui Sumitomo Insurance Company, Limited
9, Kanda-Surugadai 3-Chome, Chiyoda-ku
Tokyo, 101-8011, Japan
| Attention: | Mr. Hironori Morimoto – Senior Executive Officer |
| Mr. Kunihisa Kawasaki – General Manager, International Business Department |
| E-mail: | [***] |
| [***] |
| Tel: | [***] |
with a copy to (which shall not constitute notice):
Debevoise & Plimpton LLP
66 Hudson Boulevard E
New York, NY 10001
| Attention: | Nicholas F. Potter |
| E-mail: |
| Tel: | + 1 (212) 909-6459 |
| (iii) | If to Family Holdings: |
WR Berkley & Others LLC
475 Steamboat Road
Greenwich, CT 06830
| Attention: | Kelly F. O’Donnell |
| E-mail: | [***] |
| Tel: | [***] |
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with a copy to (which shall not constitute notice):
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
| Attention: | David A. Katz |
| E-mail: |
| Tel: | +1 (212) 403-1309 |
(iv) If to any other Member, at the last known address of such Member as disclosed by the books and records of the Company, or to such other Persons or at such other addresses as may be designated by written notice served in accordance with the provisions hereof.
Section 9.3 Entire Agreement. This Agreement (including all exhibits and schedules hereto) and the Framework Agreement constitute the entire agreement, and supersede all prior agreements, understandings, representations and warranties, both written and oral, among the parties with respect to the subject matter of this Agreement.
Section 9.4 Governing Law. This Agreement and any dispute arising hereunder, including with respect to the formation or validity hereof, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof. Each party irrevocably submits, for the purposes of any suit, action or other proceeding arising out of, or based upon, this Agreement or the subject matter hereof, to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the U.S. District Court for the District of Delaware or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware.
Section 9.5 Negotiation; Mediation.
(a) Either party may give written notice to the other party of the existence of an unresolved item of concern, dispute, controversy or claim (a “Negotiation Notice”). After a Negotiation Notice is received, the parties shall promptly hold a meeting attended by a senior executive with decision-making authority of each party, and all other persons with expertise and decision-making authority over the subject matter of the item of concern, dispute, controversy or claim, to attempt in good faith to negotiate a resolution of the matter. Such persons shall conduct additional meetings, conduct investigations and take all other actions as reasonably necessary to resolve the matter within thirty (30) days following the Negotiation Notice (the “Negotiation Period”).
(a) As an alternative to (or concurrently with) the Negotiation Period, the parties may choose to submit an unresolved item of concern, dispute, controversy or claim to nonbinding mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. The parties shall jointly appoint a mutually acceptable mediator, but the AAA shall appoint the mediator if the parties are unable to agree upon such appointment within five (5) days after the submission of the matter. The place of mediation shall be New York, New York and shall be conducted in the English language. Each party shall participate in good faith in the mediation for a period of at least thirty (30) days. Each party shall bear equally the costs of the mediation.
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Section 9.6 Specific Performance. Each of the Company and each Member hereto agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, without the necessity of posting bond or any other undertaking, the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law or in equity. If any action is brought in equity for injunctive relief or to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives any defense or counterclaim, that there is an adequate remedy at law.
Section 9.7 Waiver of Trial by Jury. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.7.
Section 9.8 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law by a court of competent jurisdiction, (a) such provision shall be fully severable, (b) this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement and (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; provided that, the parties shall cooperate to amend this Agreement to include a legal, valid and enforceable replacement provision of similar terms and effects.
Section 9.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute one instrument. Counterparts may be delivered via electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or covered
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by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 9.10 Non-Circumvention. No party shall, directly or indirectly, take, omit to take, or permit any action having a purpose of circumventing or having an effect of circumventing or rendering inapplicable, in whole or in part, the rights or obligations of any party under this Agreement. Pursuant to Section 5.13, nothing in this Section 9.10 shall apply to any actions taken by any Person in his or her capacity as a director or officer of Berkley in furtherance of fiduciary duties owed to Berkley and its stockholders.
Section 9.11 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any Person, other than the parties hereto and their heirs, representatives, successors and permitted assigns, and the Directors and other indemnitees, who are intended third party beneficiaries of this Article IX, any legal or equitable rights hereunder, except that Berkley shall be an intended third party beneficiary with respect to the provisions of this Agreement that provide specific rights to Berkley, and such provisions (and the related definitions) shall not be amended, modified, terminated or waived without the prior written consent of Berkley if such amendment, modification, termination or waiver adversely affects the rights of Berkley.
Section 9.12 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, representatives, successors and permitted assigns, including Permitted Transferees to the extent provided for in this Agreement.
Section 9.13 Termination of Agreement. This Agreement shall be terminated in its entirety: (a) upon the mutual written agreement of the Company and each Member and (b) upon completion of a dissolution and winding up of the Company in accordance with Article VIII and filing of a certificate of cancellation of the Certificate of Formation with the Secretary of State of the State of Delaware. If this Agreement is terminated pursuant to this Section 9.13, then, subject to the following two (2) sentences, this Agreement shall become null and void and of no further force and effect, and all rights and obligations of the parties hereto under this Agreement shall terminate. The rights and obligations of the parties hereto set forth in Section 8.3 and this Article IX shall survive any such termination or expiration. Termination of this Agreement for any reason shall not release any party hereto from any liability or obligation which has already accrued prior to such termination, and shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, which a party hereto may have hereunder, under applicable law or otherwise or which may arise out of or in connection with such termination.
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Section 9.14 Confidentiality. Each Member, for itself and on behalf of its representatives (including, for the purpose of this Section 9.14, such Member’s Affiliates and its and its Affiliates’ members, partners, officers, directors, employees, attorneys, accountants, consultants and other advisors, including any Person designated by such Member as a Director and secondee (together, such Member’s “Representatives”)) agrees to keep confidential, use solely for purposes reasonably related to its investment in the Company and Berkley, and not disclose to any Person, any information or matter relating to the Company, the other Members of the Company, or their respective affairs; provided that:
(a) any Member and its Representatives may make such disclosure to the extent such information (i) is or becomes generally available to the public other than as a result of a breach of this Section 9.14 by such Member or its Representatives, (ii) is received by, or becomes available to, such Member or its Representatives from a third party (provided that, such third party is not known by such Member or such Representative to be (after reasonable inquiry) bound by a confidentiality agreement with respect to such information or prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality with respect to such information), (iii) is already available to, or in the possession of, such Member or its Representatives prior to disclosure by the disclosing party (provided that, the source of such information was not known by such Member or such Representative to be (after reasonable inquiry) bound by a confidentiality agreement with respect to such information or prohibited from disclosing such information to such Member or such Representative by a contractual, legal or fiduciary obligation with respect to such information), or (iv) is independently acquired or developed by such Member or its Representatives without the use of, reliance on or reference to any confidential information received directly or indirectly from the disclosing party;
(b) nothing herein shall prohibit any Member or its Representatives from making such disclosure to the extent necessary to comply with any applicable Law, regulation or rule (including rules of self-regulatory organizations) or any court order, subpoena or other judicial or governmental process; provided that, such Member or Representative shall, to the extent legally permitted and reasonably feasible, (i) advise such regulator, Governmental Entity or other Person to whom the information is required to be disclosed of the confidential nature of the information and request that such information be treated as such, (ii) notify the disclosing party promptly and afford it an opportunity, to the fullest extent possible and at the disclosing party’s sole expense, to seek an appropriate protective order or otherwise seek to contest, limit or protect the confidentiality of such requested or required disclosure and (iii) if the disclosing party objects or challenges such disclosure, reasonably cooperate with the disclosing party, at the disclosing party’s expense, in its efforts to resist such disclosure; provided, further, that, with respect to any disclosure of confidential information made pursuant to this Section 9.14(b), (A) the disclosing Member or such Representative shall furnish only that portion of the confidential information that it reasonably determines, in consultation with its counsel
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Symphony Partners, LLC LLCA
(which may be internal counsel), is legally required and (B) notwithstanding anything to the contrary (including clauses (ii) and (iii) above), neither the Member nor any of its Representatives shall be required to notify the disclosing party of the disclosure of any such information, if such disclosure is made (x) in response to an ordinary course examination of the Member’s or such Representative’s business by a regulator, bank examiner or self-regulatory organization not specifically directed at the disclosing party of such information or (y) pursuant to ongoing reporting requirements under the Securities Exchange Act of 1934 or under other similar applicable Laws or regulatory requirements or the requirements of any exchange;
(c) any Member may make such disclosure to its Representatives and such Member’s direct or indirect investors and beneficiaries, trustees, potential investors, lenders and potential lenders and their respective advisors and Representatives who require possession or knowledge of such information in connection with such Member’s investment in the Company and Berkley; provided that, such Member (i) first advises the parties listed in this Section 9.14(c) of the confidential nature of such information and the existence of this Section 9.14 and their obligation to maintain the confidentiality of such information and (ii) shall be responsible and liable for any unauthorized use or disclosure of confidential information in breach of this Section 9.14 by any of its Representatives; and
(d) any Member may make such disclosure to any bona fide prospective purchaser of such Member’s Membership Interests or Shares (to the extent the Member is entitled to Transfer such Membership Interests or Shares to a prospective purchaser as of such time pursuant to this Agreement); provided that, such prospective purchaser shall be required to maintain the confidentiality of such disclosed information on customary terms.
Section 9.15 Successors and Assigns. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including by operation of law in connection with a merger or consolidation of such party) without the prior written consent of the other parties hereto. Any attempted assignment in violation of this Section 9.15 shall be void ab initio. To the maximum extent permitted by Law, and without limitation on any other rights of the parties, this Agreement shall be binding on each party’s successors and assigns.
ARTICLE X
EXCULPATION AND INDEMNIFICATION
Section 10.1 Exculpation. No Member, Director or officer of the Company shall be liable to the Company or to any other Member for any action taken or omitted to be taken with respect to the company within the scope of such Person’s authority conferred by, and in accordance with, this Agreement, except to the extent that any such act or omission was (i) attributable to the willful misconduct, fraud or gross negligence of such Person or (ii) a material violation of this Agreement by such Person. No Member shall be liable to the Company or any Member for any action taken by any other Member.
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Symphony Partners, LLC LLCA
Section 10.2 Indemnification. To the fullest extent permitted by applicable law, the Members, the Directors or the officers shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Member, Director or officer by reason of any act or omission performed or omitted by such Member, Director or officer in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member, Director or officer by this Agreement, except that neither such Member, Director or officer shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Member, Director or officer by reason of its willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 10.2 shall be provided out of and to the extent of Company assets only, and no Member shall have personal liability on account thereof. No amendment or repeal of this Section 10.2 shall modify, limit or eliminate the limitation of liability, limitation of duties and rights provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal.
Section 10.3 Expenses. To the extent permitted by applicable Law, expenses (including reasonable attorneys’ fees, disbursements, fines and amounts paid in settlement) incurred by an indemnified person under Section 10.2 in defending any claim, demand, action, suit or proceeding relating to or arising out of their performance of their duties on behalf of the Company may, from time to time and at the discretion of the Board, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that the indemnified person is not entitled to be indemnified as authorized in Section 10.2.
Section 10.4 Period of Indemnity. No claim for indemnification or the reimbursement of expenses shall be made by any indemnitee or paid by the Company unless such indemnitee gives notice of such claim for indemnification within one year after such indemnitee received notice of the claim or proceeding.
Section 10.5 Notice by Indemnitee. Any indemnitee shall promptly notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any matter which may be subject to indemnification or reimbursement of expenses covered by this Article X. As a condition to indemnification or reimbursement of expenses, any demand for payment by any indemnitee hereunder shall be in writing and shall provide an accounting of the amounts to be paid by the Company (which shall include detailed invoices and other relevant documentation).
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Symphony Partners, LLC LLCA
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| MITSUI SUMITOMO INSURANCE COMPANY, LIMITED |
| By:__________________________ |
| Name: |
| Title: |
| WR BERKLEY & OTHERS LLC |
| By:__________________________ |
| Name: |
| Title: |
| SYMPHONY PARTNERS, LLC |
| By:__________________________ |
| Name: |
| Title: |
[Signature Page to Operating Agreement]
Symphony Partners, LLC LLCA
Exhibit A
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT (this “Joinder Agreement”) is made as of [•] by and between [•] (the “Joining Member”) and Symphony Partners, LLC, a Delaware limited liability company (the “Company”).
WHEREAS, the Joining Member is acquiring [insert number of Membership Interests] of the Company and, in connection therewith, the Joining Member has agreed to accept certain restrictions on the disposition of Membership Interests and certain rights and obligations with respect to the Membership Interests, upon the terms, conditions and provisions set forth in the Amended and Restated Limited Liability Company Agreement of the Company, dated as of [•], 2026, by and among the Members party thereto and the Company (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Operating Agreement”);
WHEREAS, the Joining Member has agreed to become a party to the Operating Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the representations and agreements set forth in this Joinder Agreement, the parties hereby agree as follows:
1. Agreement to be Bound. The Joining Member agrees that, upon the execution of this Joinder Agreement, such Joining Member will become a party to the Operating Agreement and will be fully bound by, and subject to, all of the covenants, terms and conditions of the Operating Agreement, and such Joining Member will be deemed a “Member” thereunder for all purposes.
2. Beneficial Ownership. The Joining Member hereby represents and warrants to the Company and the other Members that, as of the date of execution of this Joinder Agreement, the Joining Member is the beneficial owner of [•] Shares of Berkley free and clear of all pledges, liens, charges, encumbrances and security interests of any kind, other than restrictions on transfer under applicable securities laws, and Joining Member has the power and right to vote or direct the voting of all such Shares.
3. Notices. The address, facsimile number and email address to which notices delivered pursuant to the Operating Agreement may be sent to the Joining Member are as follows:
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Symphony Partners, LLC LLCA
[__________________]
[__________________]
[__________________]
Attention: [__________________]
Email: [__________________]
3. Definitions; Interpretation and Construction. Capitalized terms used and not defined in this Joinder Agreement have the meanings ascribed to such terms in the Operating Agreement. The interpretation of this Joinder Agreement shall be governed by the rules of construction set forth in Section 1.2 of the Operating Agreement.
4. Binding Effect; Benefit. This Joinder Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, representatives, successors and permitted assigns, including Permitted Transferees to the extent provided for in the Operating Agreement. This Joinder Agreement is not intended to, and shall not, confer any rights or remedies upon any Person other than the parties hereto and the parties to the Operating Agreement and their heirs, representatives, successors and permitted assigns. To the maximum extent permitted by Law, and without limitation on any other rights of the parties, this Agreement shall be binding on each party’s successors and assigns.
5. Governing Law. This Joinder Agreement and any dispute arising hereunder, including with respect to the formation or validity hereof, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof. Section 9.6 and Section 9.7 of the Operating Agreement shall apply, mutatis mutandis, to this Joinder Agreement.
6. Severability. If any provision of this Joinder Agreement is held to be illegal, invalid or unenforceable under any present or future Law by a court of competent jurisdiction, then (a) such provision shall be fully severable, (b) this Joinder Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Joinder Agreement and (c) the remaining provisions of this Joinder Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.
7. Counterparts. This Joinder Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute one instrument. Each party hereto may deliver its signed counterpart of this Joinder Agreement to the other parties by means of email or any other electronic medium utilizing image scan technology, and such delivery will have the same legal effect as hand delivery of an originally executed counterpart.
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Symphony Partners, LLC LLCA
IN WITNESS WHEREOF, the parties hereto have duly executed this Joinder Agreement as of the date first above written.
| Symphony Partners, LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
| [•], as the Joining Member | ||
| By: |
| |
| Name: | ||
| Title: | ||
E-3
Exhibit 10.2
Execution Version
Mitsui Sumitomo Insurance Company, Limited
9, Kanda-Surugadai 3-Chome, Chiyoda-ku, Tokyo, 101-8011, Japan
Attention: International Business Department
E-mail: [***]; [***];
Tel: [***]
March 28, 2025
W. R. Berkley Corporation
475 Steamboat Road
Greenwich, CT 06830
| Attention: | General Counsel |
| E-mail: | [***] |
| [***] |
| Tel: | [***] |
Ladies and Gentlemen:
This letter agreement is being entered into in connection with the proposed acquisition by Mitsui Sumitomo Insurance Company, Limited (“MSI”) of fifteen percent (15%) of the issued and outstanding shares entitled to vote on the election of directors of W. R. Berkley Corporation (the “Company”) pursuant to that certain Framework Agreement (the “Framework Agreement”) entered into on the date of this letter agreement (the “Effective Date”) by and between MSI and WR Berkley & Others LLC (“Family Holdings”).
MSI and the Company agree as follows:
| 1. | Regulatory Cooperation. The Company and MSI will reasonably cooperate with each other, at MSI’s sole cost and expense, in connection with the making of any filing or application with any insurance regulators, competition authorities, foreign investment authorities or other governmental authority as may be necessary in order to consummate the transactions contemplated by the Framework Agreement as agreed by MSI, the Company and Family Holdings (the “Regulatory Filings”), including by using good faith efforts to provide information that may be required about the Company and its subsidiaries in connection with the Regulatory Filings; provided that, nothing in this letter agreement shall require the Company or any of its controlled affiliates to agree to (i) any prohibition of or limitation on the ownership or operation of any portion of their respective businesses or assets, (ii) divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, or (iii) any other limitation on its or their ability to control their respective businesses or operations. In furtherance of this regulatory cooperation, each of MSI and the Company will use good faith efforts to provide the other with information as may be reasonably requested by the other in order to complete any such filing or application and provide to the other copies of all such filings or applications promptly after they have been filed or provided to the applicable governmental authority. MSI shall use its reasonable best efforts to seek confidential treatment of any Regulatory Filing, to the extent permissible under applicable law. |
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MSI will provide the Company with a reasonable opportunity to review and discuss in advance all Regulatory Filings to be made or submitted by or on behalf of MSI, and MSI will use its reasonable best efforts to (i) keep the Company promptly informed of any substantive communications received in connection with any proceedings under or relating to any Regulatory Filing (and in the case of substantive written communications, furnish the Company with a copy of such communications), and (ii) provide the Company a reasonable opportunity to attend and participate in substantive meetings and conversations with any such governmental authority (whether in person or otherwise). Notwithstanding any of the foregoing, MSI will not be required to provide copies of any filings it makes with or communications it has with, or to permit attendance at meetings or conversations with, the Japanese Financial Services Agency (or other regulator of its business that does not also regulate the Company and its subsidiaries); provided that, with respect to any such filings or communications that are not provided, MSI shall provide the Company with excerpts of such filings or communications to the extent such excerpt includes or summarizes any substantive information about the Company or its subsidiaries. Any Regulatory Filing or communication (or excerpt thereof) furnished to the Company hereunder that is in a language other than English shall be provided to the Company with a true and complete English translation.
Without limiting the generality of the foregoing, promptly following the Effective Date, MSI, the Company and Family Holdings shall submit a draft joint voluntary notice to Committee on Foreign Investment in the United States (“CFIUS”) pursuant to 31 C.F.R. § 800.501 with respect to the transactions contemplated by the Framework Agreement, and, as promptly as reasonably practicable after addressing any comments received from CFIUS concerning the draft joint voluntary notice, submit a joint voluntary notice to CFIUS pursuant to 31 C.F.R. § 800.501 with respect to the transactions contemplated by the Framework Agreement.
MSI shall provide the Company, with reasonable promptness, such information and data with respect to MSI and Symphony Partners, LLC as may be necessary for the Company or its subsidiaries to comply with its or their respective reporting, regulatory or other legal requirements, and the Company shall provide MSI with excerpts of any regulatory filings or communications to the extent such excerpt includes or summarizes any substantive information about MSI or Symphony Partners, LLC.
| 2. | Accounting Cooperation. As stated in the Framework Agreement, a key purpose of the transactions contemplated by the Framework Agreement is to allow for MSI to account for its investment in Symphony Partners, LLC and Symphony Partners, LLC’s interests in the Company on the equity method under the accounting standards applicable to MSI. The Company agrees, at MSI’s sole cost and expense, from and after the Closing Date (as defined in the Framework Agreement), to (i) use its good faith efforts to provide MSI and its auditors with assistance and access to publicly available information, and such non-public information as the Company may reasonably agree to share in its sole discretion, in each case as may be reasonably requested in writing by MSI or its auditors to allow for the conversion by MSI of the Company’s financial statements from generally accepted accounting principles in the United States to international accounting standards issued by the International Financial Reporting Standards Foundation and the International |
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| Accounting Standards Board, as in effect from time to time, as soon as reasonably practicable following the later of (a) the submission or filing of the Company’s and its subsidiaries’ financial statements to any regulatory authority and (b) the completion of the Company’s and its subsidiaries’ financial statements by its respective finance team or any audit or review by the Company’s external auditors for each quarter and fiscal year end, and (ii) discuss the Company’s financial statements with MSI’s auditors as necessary for the purpose of their audit of MSI’s financial statements. Any such assistance and access shall be upon reasonable prior notice, occur during normal business hours and be conducted in a manner that does not unreasonably interfere with the business and operations of the Company, and prior to receiving any such assistance or access MSI’s auditors shall enter into a mutually acceptable confidentiality agreement with the Company. |
| 3. | Confidentiality. MSI and the Company are entering into a mutual confidentiality agreement, dated as of the Effective Date, in the form attached hereto as Exhibit A (the “Confidentiality Agreement”). |
Notwithstanding any of the foregoing, neither MSI nor the Company shall be required to provide the other with any Sensitive Information in connection with the cooperation contemplated by this letter agreement, and materials may be redacted or designated “outside counsel only” to remove Sensitive Information as may be reasonably determined by the disclosing party. “Sensitive Information” means, with respect to a person, information or materials that (i) are commercially or competitively sensitive, (ii) contain personal information or other personally identifiable information about an officer, director or control person of such person or any of its affiliates or (iii) are legally privileged.
Each of MSI and the Company shall (i) coordinate with the other regarding the timing of any public disclosures by one party or its affiliates involving information about the other party, (ii) provide the other with drafts of any such public disclosures reasonably in advance and consider in good faith any comments that the other may have with respect to such disclosures and (iii) use its commercially reasonable efforts to make the timing and content of any such public disclosures involving information about the other party in a manner consistent with the timing and content of the other’s public disclosures of such information, in each case except for public disclosures (other than any disclosures made as part of any regulatory filing or communication) that are consistent in all material respects with prior public disclosures made in compliance with this paragraph.
Each of the parties, as applicable, hereby represents and warrants to the other party, as of the date hereof, as follows: (i) such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of domicile and has the full corporate or other power to carry out its obligations under this letter agreement and the Confidentiality Agreement; (ii) such party has all requisite power to enter into, consummate the transactions contemplated by, and carry out its obligations under, this letter agreement and the Confidentiality Agreement; (iii) the execution and delivery by such party of this letter agreement and the Confidentiality Agreement, and the consummation by such party of the transactions contemplated by, and the performance by such party of its obligations under, this letter agreement and the Confidentiality Agreement have been duly authorized by all requisite actions on the part of such party; (iv) this letter agreement and the Confidentiality Agreement have been duly executed and delivered by such party and constitute the legal, valid and binding obligation of such party enforceable against it in accordance with its terms;
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and (v) the execution, delivery and performance by such party of the transactions contemplated by this letter agreement and the Confidentiality Agreement do not (a) violate or conflict with the organizational documents of such party or (b) violate in any material respect or conflict in any material respect with any law or order applicable to such party or any of its affiliates.
This letter agreement and any dispute arising hereunder, including with respect to the formation or validity hereof, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof. Each party irrevocably submits, for the purposes of any suit, action or other proceeding arising out of, or based upon, this letter agreement or the subject matter hereof, to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the U.S. District Court for the District of Delaware or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
This letter agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute one instrument. Counterparts may be delivered via electronic mail (including any electronic signature complying with the Delaware Uniform Electronic Transactions Act (6 DE Code § 12A-107), or covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
This letter agreement and the Confidentiality Agreement, together with the other documents referenced in this letter agreement, constitute the entire agreement, and supersede all prior agreements, understandings, representations and warranties, both written and oral, among the parties with respect to the subject matter of this letter agreement.
This letter agreement shall terminate upon the earlier of (i) the effective date of the termination of the Framework Agreement and (ii) the effective date of the dissolution of Symphony Partners, LLC; provided that, Section 2 hereof and the related provisions of the third preceding paragraph of this Letter Agreement shall survive until such provisions have been satisfied with respect to the MSI fiscal year in which such termination occurs.
[Signature Page Follows]
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If the above correctly reflects our understanding and agreement with respect to the foregoing matters, please so confirm by signing and returning the enclosed copy of this letter agreement.
| MITSUI SUMITOMO INSURANCE COMPANY, LIMITED | ||
| By: | /s/ Shinichiro Funabiki | |
| Name: Shinichiro Funabiki | ||
| Title: President and Chief Executive Officer | ||
[Signature Page to Cooperation Letter Agreement]
| Agreed to and Acknowledged as of the date first written above: | ||
| W. R. BERKLEY CORPORATION | ||
| By: | /s/ Richard M. Baio | |
| Name: Richard M. Baio | ||
| Title: Executive Vice President, Chief Financial Officer | ||
[Signature Page to Cooperation Letter Agreement]
Exhibit 10.3
Execution Version
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 28, 2025 (the “Effective Date”), is entered into by and between W. R. Berkley Corporation, a Delaware corporation (“Berkley”), and Mitsui Sumitomo Insurance Company, Limited, a Japanese stock company (“MSI”, and each of Berkley and MSI, a “party”).
RECITALS
WHEREAS, simultaneously with the execution and delivery of this Agreement, (a) MSI and WR Berkley & Others LLC are entering into a framework agreement (“Framework Agreement”) with respect to the acquisition by MSI of shares of Berkley and certain other matters, and (b) MSI and Berkley are entering into a letter agreement (the “Letter Agreement”) setting forth the parties’ cooperation obligations related to the transactions contemplated by the Framework Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, the receipt and sufficiency of which are acknowledged by each of the parties, and upon the terms and subject to the conditions set forth in this Agreement, the parties agree as follows:
1. Confidential Information. All information (written or oral) relating to a party (a “providing party”) that a providing party or any of its stockholders, affiliates, directors, officers, employees, agents or advisers, including legal and accounting advisers and auditors (collectively, “Representatives”) furnishes or has furnished to the other party (a “receiving party”) or any of its Representatives at any time in connection with the transactions contemplated by the Framework Agreement and the limited liability company agreement of Symphony Partners, LLC to be entered into in connection therewith, including the obligations arising under the Letter Agreement, and all notes, analyses, compilations, forecasts, studies or other documents prepared by the receiving party or its Representatives that contain or reflect such information, are referred to in this Agreement as the providing party’s “Confidential Information.” Confidential Information does not include information (a) that is or becomes available to the public other than as a result of an act or omission by the receiving party or any of its Representatives in violation of this Agreement, (b) that a receiving party or its Representative receives or has received on a nonconfidential basis from a source other than the providing party or any of its Representatives, provided that, such source is not known to the receiving party to be subject to a contractual, legal, fiduciary or other obligation of confidentiality with respect to such information, (c) that a receiving party or its Representatives has received from the providing party or any of its affiliates or Representatives prior to the date hereof, without an obligation to maintain its confidentiality or (d) that was independently developed by the receiving party or its Representatives without the use of the Confidential Information.
2. Use of Confidential Information. Each receiving party will disclose the providing party’s Confidential Information only to the receiving party’s Representatives who need to know such information for the purposes contemplated by the Letter Agreement and who have been informed by the receiving party of the confidential nature of such Confidential Information and instructed by the receiving party to comply with the terms of this Agreement. Each receiving party will keep the providing party’s Confidential Information confidential and will use such Confidential Information solely for the purpose contemplated by the Letter Agreement. Each receiving party will be responsible for any actions taken by its Representatives that would be deemed a breach of this Agreement if the receiving party had taken such actions.
3. Disclosure of Confidential Information. In the event that a receiving party or any of its Representatives is requested or required by a governmental authority or contractually appointed arbitrator to disclose any of the providing party’s Confidential Information, the receiving party will, to the extent not prohibited by law, rule or regulation or court or administrative order or request, give the providing party prompt written notice of such request or requirement so that the providing party may seek (at MSI’s sole expense) an appropriate order or other remedy protecting such Confidential Information from disclosure, and the receiving party will cooperate, reasonably and at the disclosing party’s expense, with the providing party to obtain such protective order or other remedy. In the event that such protective order or other remedy is not obtained or the providing party waives its right to seek such an order or other remedy, the receiving party (or its Representatives to whom such request is directed) may, without liability under this Agreement, furnish only that portion of the providing party’s Confidential Information that, on the advice of its counsel, the receiving party (or such Representatives) is requested or required to disclose, provided that, the receiving party gives the providing party written notice of the information to be disclosed as far in advance of its disclosure as practicable and uses reasonable efforts, at the providing party’s sole expense, to obtain assurances that confidential treatment will be accorded to such information. Notwithstanding the foregoing, the receiving party and its Representatives may disclose Confidential Information (a) in connection with the regulatory processes foreseen by the Letter Agreement without giving notice to the disclosing party, (b) in response to any audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, examiner or auditor, without giving notice to the disclosing party thereof or cooperating with the disclosing party with respect thereto, or (c) in the case of MSI, to any bona fide prospective purchaser of MSI’s interests in Berkley; provided that, in the case of (c), MSI shall be required to obtain the prior written consent of Berkley prior to sharing any Confidential Information of Berkley with any such prospective purchaser and such prospective purchaser shall enter into a confidentiality agreement with Berkley in a form reasonably acceptable to Berkley prior to any Confidential Information being disclosed.
4. Limitation on Representations and Warranties. No providing party or Representative of a providing party has made or is making, and no receiving party is relying on, any representation or warranty, express or implied, regarding the accuracy or completeness of any Confidential Information provided by or on behalf of the providing party, including without limitation any projections, estimates, budgets or information relating to the assets, liabilities, results of operations, condition (financial or otherwise), customers, suppliers or employees of the providing party, and no providing party or Representative of a providing party shall have any liability to the receiving party or any of its Representatives relating to or resulting from the use of Confidential Information provided by or on behalf of the providing party.
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5. Cooperation Process; Property. Except with the prior permission of the other party, all requests for information in compliance with the Letter Agreement, in each case that are directed to the other party or its Representatives, must be directed to the specific individuals who may be specifically designated by the respective parties. Confidential Information of a providing party is and shall always remain the exclusive property of such providing party, and the receiving party acknowledges the right, title and interest of the providing party in and to such information. The providing party does not grant the receiving party or any of its Representatives any ownership, license, copyright or similar right related to any of the Confidential Information.
6. Return, Destruction of Confidential Information. Following the termination of the Framework Agreement, each receiving party will, and will direct its Representatives to, promptly return to the providing party or destroy (at the receiving party’s option) the Confidential Information received by the receiving party or its Representatives from the disclosing party and its Representatives; provided that, neither party nor any of its Representatives will be required to erase electronically stored Confidential Information that has been saved to a backup file in accordance with ordinary electronic backup practices, legal or regulatory requirements or internal document retention policies or professional standards, on the condition that, except as otherwise required by applicable law (a) personnel whose functions are not primarily information technology, legal or compliance do not access such retained copies, and (b) personnel whose functions are primarily information technology, legal or compliance in nature access such copies only as reasonably necessary for the performance of their information technology, legal or compliance duties (e.g., for purposes of system recovery). Notwithstanding the return, destruction or retention of Confidential Information, each party and its respective Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder for a period of two (2) years after such obligations terminate pursuant to Section 7 or this Agreement is otherwise terminated by the parties.
7. Termination. This Agreement shall terminate automatically and immediately upon the termination of all of the parties’ obligations under the Letter Agreement in accordance with its terms; provided that, the parties’ obligations with respect to any Confidential Information that has been provided prior to such termination shall survive for a period of two (2) years after such termination.
8. Non-Circumvention. No party shall, directly or indirectly, take, omit to take, or permit any action having a purpose of circumventing or having an effect of circumventing or rendering inapplicable, in whole or in part, the rights or obligations of any party under this Agreement.
9. Remedies; Specific Performance. Each of the parties hereto agrees that irreparable harm would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages would not be a sufficient remedy for any breach of this Agreement. It is accordingly agreed that, without the necessity of posting bond or any other undertaking, the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law or in equity. If any action is brought in equity for injunctive relief or to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives any defense or counterclaim, that there is an adequate remedy at law, each party will not (and will direct its Representatives not to) oppose the granting of such relief, and each party will waive any requirement for the posting of any bond or other security in connection therewith.
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10. Amendment; Waiver. This Agreement may not be amended or modified without the written consent of each of the parties hereto. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Any party may waive any provision of this Agreement with respect to itself if such waiver is approved in writing by such party.
11. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any Person, other than the parties hereto and such assigns, any legal or equitable rights hereunder.
12. Successors and Assigns. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including by operation of law in connection with a merger or consolidation of such party) without the prior written consent of the other parties hereto; provided that, MSI may assign its rights and obligations hereunder to any permitted transferee to which it transfers its shares of Berkley; provided, however, no such assignment shall limit or relieve MSI of its duties under this Agreement and MSI may not share Berkley’s Confidential Information with any third parties (other than its Representatives) without Berkley’s prior written consent except as otherwise permitted by this Agreement. Any attempted assignment in violation of this Section 12 shall be void ab initio. To the maximum extent permitted by law, and without limitation on any other rights of the parties, this Agreement shall be binding on each party’s successors and assigns.
13. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law by a court of competent jurisdiction, (a) such provision shall be fully severable, (b) this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement and (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement; provided that, the parties shall cooperate to amend this Agreement to include a legal, valid and enforceable replacement provision of similar terms and effects.
14. Entire Agreement. This Agreement (including all exhibits and schedules hereto) hereby constitutes the entire agreement and supersedes all prior agreements, understandings, representations and warranties, both written and oral, among the parties with respect to the subject matter of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute one instrument. Counterparts may be delivered via electronic mail (including any electronic signature complying with the Delaware Uniform Electronic Transactions Act (6 DE Code § 12A-107), or covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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16. Governing Law. This Agreement and any dispute arising hereunder, including with respect to the formation or validity hereof, shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Each party irrevocably submits, for the purposes of any suit, action or other proceeding arising out of, or based upon, this letter agreement or the subject matter hereof, to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the U.S. District Court for the District of Delaware or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware.
17. Waiver of Trial by Jury. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.
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IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as of the date first written above.
| W. R. BERKLEY CORPORATION | ||
| By: | /s/ Richard M. Baio | |
| Name: | Richard M. Baio | |
| Title: | Executive Vice President, Chief Financial Officer | |
| MITSUI SUMITOMO INSURANCE COMPANY, LIMITED | ||
| By: | /s/ Shinichiro Funabiki | |
| Name: | Shinichiro Funabiki | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Confidentiality Agreement]
Exhibit 99.1
W. R. Berkley Corporation Confirms Mitsui Sumitomo Insurance Co. Intends to Purchase 15% of the Company’s Shares in Open Market or Private Transactions from Third Parties
MSI also entered into a voting arrangement with a company that is owned by the Berkley family and trusts for their benefit, which holds approximately 16% of the Company’s outstanding Common Stock
GREENWICH, Conn., March 28, 2025—W. R. Berkley Corporation (NYSE: WRB) (the “Company”) today confirmed that Mitsui Sumitomo Insurance Co., Ltd. (“MSI”), a leading Japanese property and casualty insurance carrier, has entered into an arrangement (the “Investment and Voting Arrangement”) with a company owned by members of the Berkley family and trusts for their benefit (collectively, the “Berkley Family”) providing for MSI to purchase 15% of the Company’s outstanding common stock (the “Common Stock”) through open market purchases or private transactions with third parties. The Berkley Family will not be selling any of its Common Stock to MSI, nor will MSI be purchasing any shares from the Company as part of the arrangement.
Under the terms of the agreements being entered into between MSI and the Berkley Family, once MSI acquires 4.9% of the outstanding Common Stock, MSI agrees to vote those shares pursuant to the recommendations of the Berkley Family, except in limited circumstances where the Berkley Family will vote the MSI shares in the same proportion as all of the non-MSI shares are voted. Once MSI acquires at least 12.5% of the outstanding shares, the Berkley Family agrees to recommend the nomination and election of a MSI director designee to the Company’s Board of Directors, subject to review and approval by the Board’s Nominating and Corporate Governance Committee in accordance with its governance policies and procedures and appointment to the Board by the Board and subsequent re-election at the Company’s annual stockholder meeting. The Berkley Family intends to continue to have two representatives on the Company’s Board.
The agreements between MSI and the Berkley Family will not have any effect on the day-to-day operations of the Company, nor will these arrangements reduce the Berkley Family’s commitment to the Company.
Under the agreements with the Berkley Family, MSI has also agreed to customary standstill restrictions relating to the Company that are also directly enforceable by the Company.
“We have deep respect for MSI developed over years of collaborating with them through the Company’s re-insurance operations,” said Rob Berkley, President and CEO of W. R. Berkley Corporation. “We remain committed to the Company’s long-term success and we welcome the opportunity to have MSI as a shareholder. Their significant investment in the Company’s shares is a validation of our Company’s outstanding performance and growth trajectory, and we are excited to have regular conversations with them about opportunities to leverage their international presence to help the Company drive sustainable stockholder value.”
“We are extremely excited to make an investment in W. R. Berkley,” said Shinichiro Funabiki, President and CEO of MSI. “Their first-class track record in the U.S. specialty market attracted us in making an investment, and we look forward to bringing our network in Japan, Asia and other selected markets to lead to sustained growth and increased value for both the Company and MSI’s investment.”
In connection with the Investment and Voting Arrangement, the Company entered into a cooperation agreement to assist MSI with its related regulatory filings, approvals and accounting treatment for its investment. A special committee of the Company’s Board of Directors, composed of three independent and disinterested directors and advised by independent legal counsel, reviewed, negotiated, considered and recommended these agreements and related matters for the Company, which were approved by the independent and disinterested directors of the Company’s Board. Prior to the formation of the special committee, the Berkley Family indicated that they would not proceed with the arrangements with MSI absent the recommendation of the special committee and the approval of the independent and disinterested directors of the Board.
MSI’s investment is subject to customary regulatory approvals and is anticipated to be completed by the end of March 2026.
The description of the agreements between MSI, the Berkley Family and/or the Company are qualified in their entirety by reference to the full text of the agreements attached as exhibits to the Form 8-K to be filed by the Company later this morning. A copy of the Form 8-K, once filed, can be found on the Investor Relations section of our website.
About W. R. Berkley Corporation
Founded in 1967, W. R. Berkley Corporation is an insurance holding company that is among the largest commercial lines writers in the United States and operates worldwide in two segments of the property casualty insurance business: Insurance and Reinsurance & Monoline Excess. For further information about W. R. Berkley Corporation, please visit www.berkley.com.
About MSI
Mitsui Sumitomo Insurance Co., Ltd., a key entity of the MS&AD Insurance Group, is one of the largest personal and commercial lines writers in Japan and operates in 41 countries and regions. Its two precursor companies were founded in 1893 and 1918 respectively. For further information about Mitsui Sumitomo Insurance Co., Ltd., please visit https://www.ms-ins.com/english/
Forward-Looking Statements
This is a “Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995. Any forward-looking statements contained herein, including statements related to our outlook for the industry and for our performance for the year 2025 and beyond, are based upon the Company’s historical performance and on current plans, estimates and expectations. The inclusion of this forward-looking information should not be regarded as a representation by us or any other person that the future plans, estimates or expectations contemplated by us will be achieved. They are subject to various risks and uncertainties, including but not limited to, the success of our new ventures or acquisitions and the availability of other opportunities, our ability to attract and retain key personnel and qualified employees, and other risks detailed from time to time in the Company’s filings with the Securities and Exchange Commission. These risks could cause actual results of the industry or our actual results for the year 2025 and beyond to differ materially from those expressed in any forward-looking statement made by or on behalf of the Company. Any projections of growth in the Company’s revenues would not necessarily result in commensurate levels of earnings. Forward-looking statements speak only as of the date on which they are made, and the Company undertakes no obligation to update publicly or revise any forward-looking statement, whether as a result of new information, future developments or otherwise.
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Karen A. Horvath
Vice President - External
Financial Communications
(203) 629-3000
Source: W. R. Berkley Corporation